FILED
FOR PUBLICATION
Jan 31 2012, 9:21 am
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SCOTT DANKS GREGORY F. ZOELLER
JOHN ANDREW GOODRIDGE Attorney General of Indiana
Danks & Danks
Evansville, Indiana ELLEN H. MEILAENDER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM R. WALLACE, )
)
Appellant-Defendant, )
)
vs. ) No. 26A01-1101-CR-9
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GIBSON SUPERIOR COURT
The Honorable Earl G. Penrod, Judge
Cause No. 26D01-1006-FD-100
January 31, 2012
OPINION - FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant William R. Wallace brings this interlocutory appeal, claiming
that the trial court abused its discretion in denying his motion to dismiss. Wallace argues that
the dismissal of the Class D felony Voyeurism1 charge was warranted because the facts, as
alleged, cannot constitute voyeurism. Concluding that the alleged facts, if proven to be true,
could support a voyeurism conviction, we affirm the trial court’s order denying Wallace’s
motion to dismiss.
FACTS AND PROCEDURAL HISTORY
Because this is an interlocutory appeal, the facts have not yet been established through
a trial. The alleged facts contained in the investigative reports are as follows:
In February of 2009, A.J. was incarcerated in the Gibson County Jail and was
represented by an attorney. While she was incarcerated, A.J. received a visit from Wallace,
who inquired into whether she needed legal representation. A.J. did not know Wallace
before he visited her in jail. Wallace told A.J. that he was visiting her because a mutual
acquaintance had informed him that she may need legal representation. A.J. initially told
Wallace that she did not need any legal representation, but later talked to Wallace about
potentially representing her in divorce proceedings.
A.J. later inquired about what Wallace would charge to represent her in a civil lawsuit.
Wallace told A.J. that he would charge $750. Wallace told A.J. that she could pay him $200
then, and “work the other [$550] off when she got out of jail.” Appellant’s App. p. 19. A.J.
contacted a family member who paid Wallace $200 to represent A.J. in the civil matter.
1
Ind. Code § 35-45-4-5(b) (2009).
2
Wallace subsequently informed A.J. that she was scheduled to be released from jail on
September 4, 2009. Appellant’s App. p. 19.
On or about August 29, 2009, Wallace visited A.J. in the jail and notified her that she
was no longer scheduled to be released on September 4, 2009, but that he “had a proposition
for her.” Appellant’s App. p. 20. Wallace suggested that he could ensure that A.J. would be
released from jail on September 4, 2009, as previously scheduled, if she would agree to have
sexual intercourse with him following her release. A.J. told Wallace that she would have
sexual intercourse with him if it “was going to get her home quicker so she could be with her
children.” Appellant’s App. p. 20. Wallace instructed A.J. to contact him upon being
released from jail.
A.J. was released from the Gibson County Jail at approximately 6:00 a.m. on
September 4, 2009. After visiting the probation department, A.J. contacted Wallace, and the
two arranged to meet that afternoon at a park in Ft. Branch. Later that afternoon, A.J. and
Wallace met in the park before going to an apartment that belonged to a friend of Wallace’s.
Upon arriving at the apartment, A.J. became nervous and went into the bathroom before
entering the bedroom where she engaged in sexual intercourse with Wallace. A.J. was not
aware that Wallace had video recorded their sexual encounter, and did not give her consent
for him to do so.
In March of 2010, A.J. contacted police after learning that Wallace had recorded their
sexual encounter on September 4, 2009, and had shown the recording to her boyfriend.
A.J.’s boyfriend told the police officers that the recording showed Wallace turning on the
3
camera before A.J. entered the bedroom and that it continued to run throughout A.J.’s and
Wallace’s sexual encounter. A.J. told the investigating officers that she had confronted
Wallace about the recording and that he had first denied recording their sexual encounter
before assuring her that the recording had been destroyed.
An investigation ensued, which led the investigating officers to obtain a warrant to
search both Wallace’s home and the apartment in Ft. Branch. During the search, Wallace
attempted to hide certain objects, including numerous DVDs and a computer hard drive, from
the investigating officers by hiding the items in his pants. Upon searching Wallace’s home,
investigating officers recovered at least one recording of A.J. engaging in sexual intercourse
with Wallace, recordings of Wallace engaging in sexual intercourse with at least one other
woman, and DVDs containing child pornography.
On June 16, 2010, the grand jury indicted Wallace on charges of Class D felony
obstruction of justice, Class D felony possession of child pornography, Class A misdemeanor
patronizing a prostitute, and Class B misdemeanor false informing. On July 2, 2010, Wallace
filed a motion to sever the child pornography charge, which was denied by the trial court on
October 15, 2010. At Wallace’s request, the trial court certified its October 15, 2010 order
for interlocutory appeal.
On November 30, 2010, the State charged Wallace, by information, with an additional
count of Class D felony voyeurism. On January 7, 2011, Wallace filed a motion to dismiss
the voyeurism charge as well as three separate motions to suppress evidence recovered
during the search of his home. Following a hearing, the trial court denied Wallace’s motions
4
on February 8, 2011. Again at Wallace’s request, the trial court certified its February 8, 2011
order for interlocutory appeal.
On April 1, 2011, this court issued orders accepting jurisdiction over the interlocutory
appeals from both the October 15, 2010 and February 8, 2011 orders of the trial court.2 This
appeal follows.
DISCUSSION AND DECISION
Wallace contends that the trial court abused its discretion in denying his motion to
dismiss the Class D voyeurism charge because his alleged actions, if proven to be true, do not
constitute voyeurism. We review a trial court’s denial of a motion to dismiss for an abuse of
discretion. Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App. 2011). In reviewing a
trial court’s decision for an abuse of discretion, we reverse only where the decision is clearly
against the logic and effect of the facts and circumstances. Id.
As a general rule, when a defendant files a motion to dismiss an
information, the facts alleged in the information are to be taken as true. State
v. Bilbrey, 743 N.E.2d 796, 798 (Ind. Ct. App. 2001). Questions of fact to be
decided at trial or facts constituting a defense are not properly raised by a
motion to dismiss. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App.
2003). A hearing on a motion to dismiss is not a trial of the defendant on the
offense charged. See id. (noting that the facts permitted to be raised in a
motion to dismiss “typically concern only pre-trial matters”).
Id. at 594-95.
2
Although Wallace sought and received permission to bring an interlocutory appeal of the denials of
his motion to sever and motions to suppress, Wallace has not presented any argument relating to the denial of
his motions for severance or suppression in his appellate brief. As such, Wallace has waived his opportunity to
obtain interlocutory review of these additional claims. See generally, Bieghler v. State, 481 N.E.2d 78, 89
(Ind. 1985) (providing that failure to present a cogent argument relating to a particular issue results in waiver
of that issue on appeal).
5
Indiana Code section 35-45-4-5 provides in relevant part as follows:
(b) A person:
(1) who knowingly or intentionally:
(A) peeps; or
(B) goes upon the land of another with the intent to peep;
into an occupied dwelling of another person; or
(2) who knowingly or intentionally peeps into an area where an
occupant of the area reasonably can be expected to disrobe, including:
(A) restrooms;
(B) baths;
(C) showers; and
(D) dressing rooms;
without the consent of the other person, commits voyeurism, a Class B
misdemeanor.
(c) However, the offense under subsection (b) is a Class D felony if:
(1) it is knowingly or intentionally committed by means of a camera.
The Indiana General Assembly has defined “peep” as “any looking of a clandestine,
surreptitious, prying, or secretive nature.” Ind. Code § 35-45-4-5(a)(2). “‘Camera’ means a
camera, a video camera, a device that captures a digital image, or any other type of video
recording device.” Ind. Code § 35-45-4-5(a)(1).
In support of his contention that his alleged actions do not constitute voyeurism
Wallace argues that A.J. consented to engaging in the sexual encounter with Wallace, and
thus, she consented to disrobing in front of Wallace. Accordingly, Wallace argues that his
actions do not constitute voyeurism. Had Wallace not used a camera to record the sexual
encounter or had Wallace received A.J.’s consent to record the sexual encounter, this may be
true, as consent is the crux of Indiana Code section 35-45-4-5. See generally, Chiszar v.
State, 936 N.E.2d 816, 823 (Ind. Ct. App. 2010) (providing that consent is the crux of the
voyeurism statute), trans. denied. Wallace, however, did not do so.
6
With respect to voyeurism, this court has held that it “is the nature of the looking that
is at issue.” Id. The “looking” that is proscribed under the statute is “any looking of a
clandestine, surreptitious, prying, or secretive nature.” Ind. Code § 35-45-4-5(a)(2). There
can be no reasonable purpose for that kind of looking since, by definition, it is without the
other person’s knowledge, and, therefore, it is without the other person’s consent. Chiszar,
936 N.E.2d at 823. To look at someone in a clandestine or secret manner is to hide that
looking from the other person, and it is that act that is proscribed by the statute. Id. This
court has noted that while those participating in sexual encounters may expect that they will
see one another disrobing, and, under most circumstances, participants in such relationships
impliedly consent to being seen without clothes on, “that is not to say that ‘peeping’ is
categorically permissible in such relationship settings.” Id.
In Chiszar, the evidence demonstrated that the defendant knew that he did not have
the victim’s consent to videotape her naked or engaging in sexual intercourse with him. Id.
at 824. While the victim was sleeping, the defendant videotaped himself taking the victim’s
clothes off, and he initiated sexual intercourse with her. Id. The victim woke up at that point
and realized that the defendant was videotaping her. Id. The victim was upset, and when she
tried to grab the video camera, the defendant took it and tried to prevent her from getting it.
Id. When the victim demanded that the defendant give her the video camera, he denied
having videotaped her. Id. On appeal, this court concluded that the evidence supported a
reasonable inference that the defendant knew that he did not have the victim’s consent to
videotape the sexual encounter at the time that he did so, and, thus, that he knowingly
7
committed voyeurism by videotaping the victim in a clandestine manner in an area where she
was likely to disrobe. Id. Thus, the defendant’s voyeurism conviction was not disturbed. Id.
In the instant matter, the alleged facts, if proven to be true at trial, can constitute
voyeurism because Wallace recorded A.J. disrobing and engaging in a sexual encounter
without her consent in a clandestine, surreptitious, prying, or secretive nature. The alleged
facts indicate that Wallace started the camera before A.J. entered the room and left it running
until after the sexual encounter was over. A.J. was not aware that Wallace was recording the
encounter and did not consent to him doing so. Upon learning that Wallace had recorded the
encounter, A.J. asked to see the recording. Wallace initially denied having recorded the
sexual encounter before assuring A.J. that the recording had been destroyed. Wallace also
attempted to conceal the recording from investigating officers who were searching his home
during their investigation into A.J.’s complaint. We conclude that these facts, again if proven
to be true, could lead to a reasonable inference that Wallace knew that he did not have A.J.’s
consent at the time that he recorded her, and, thus, that he knowingly recorded her in a
clandestine or secretive manner in an area where she was likely to disrobe.
Furthermore, to the extent that Wallace claims that A.J. implicitly consented to his
recording the sexual encounter because she consented to the encounter itself, we are
unpersuaded by Wallace’s claim because we believe that one may consent to engaging in a
sexual encounter without consenting to the encounter being recorded. Thus, we conclude
that it is immaterial that A.J. consented to the sexual encounter if she did not consent to
Wallace’s recording of the encounter. Wallace’s act of secretly recording the sexual
8
encounter could reasonably be found to be peeping, or looking in a clandestine, surreptitious,
prying, or secretive nature. Thus, we conclude that the trial court acted within its discretion
in denying Wallace’s motion to dismiss because the alleged facts, if ultimately proven to be
true, could support a conviction for Class D felony voyeurism.
The judgment of the trial court is affirmed.
KIRSCH, J., concurs.
BARNES, J., concurs with opinion.
9
IN THE
COURT OF APPEALS OF INDIANA
WILLIAM R. WALLACE, )
)
Appellant-Defendant, )
)
vs. ) No. 26A01-1101-CR-9
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
BARNES, Judge, concurring
I concur in this case, albeit reluctantly because of the wording of the voyeurism statute
and the application we are obliged to make here. Make no mistake, Wallace’s alleged
conduct was hardly chivalrous, and he defines the word cad. Ultimately, I think he could
properly be found guilty of Class D felony voyeurism if the facts alleged here are proven
true. However, the voyeurism statute was drawn primarily to punish persons who peep into
bathrooms, locker rooms, dressing rooms, and the like.
If the allegations here are true, there is no doubt that A.J. was filmed without her
knowledge. It is also true she consensually engaged in sex with Wallace and knew what she
10
was doing. She necessarily consented to Wallace seeing her naked. She made a barter
choice, and I do not think she is a typical “victim” envisaged by this statute. As the majority
acknowledges, it seems Wallace did not peep upon A.J. or commit Class B misdemeanor
voyeurism when he saw A.J. naked while having consensual sex. Wallace was charged with
the greater Class D felony voyeurism offense, and normally if one does not commit a lesser
included offense, he or she cannot be convicted of the greater offense. See Simmons v.
State, 793 N.E.2d 321, 325 (Ind. Ct. App. 2003).
The camera that Wallace set up, however, did peep. Although a camera by itself
cannot commit a crime, the recording it made permitted Wallace to repeatedly view A.J.
naked and engaging in sex with him. A.J. did not consent to being seen naked repeatedly by
Wallace. She also certainly did not consent to her private act of sexual intercourse with
Wallace being shown to her boyfriend, or to whomever Wallace might choose to show it.
The alleged facts here are that A.J. was filmed without her knowledge and/or consent, and so
I believe there was a “peeping” within the meaning of the voyeurism statute because it was a
“looking of a clandestine, surreptitious, prying, or secretive nature.” Ind. Code § 35-45-4-
5(a)(2). Thus, I vote to affirm the trial court’s denial of Wallace’s motion to dismiss.
11