ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. O’CONNOR STEVE CARTER
O’Connor & Auersch Attorney General of Indiana
Indianapolis, Indiana
GRANT H. CARLTON
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
SCOTT SAXTON, )
)
Appellant (Defendant Below), ) 49S02-0306-CR-250
) in the Supreme Court
v. )
) 49A02-0208-CR-657
STATE OF INDIANA, ) in the Court of Appeals
)
Appellee (Plaintiff Below). )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert Altice, Judge
49G02-9208-DF-111650
June 20, 2003
SHEPARD, Chief Justice.
Appellant Scott Saxton got arrested for voyeurism after he was caught
standing on a home air conditioner staring into a woman’s bathroom one
morning at 5 a.m. Saxton was on probation at the time, and the trial court
revoked his probation and ordered the balance of his sentence as executed
time. Voyeurism only occurs in the absence of permission, of course, and
Saxton says the State failed to prove that the victim did not give
permission.
Saxton had served most of a twenty-year sentence for aggravated
battery imposed in 1993. The last three years of the sentence had been
suspended to probation.
Early in the morning on May 13, 2002, Jeffrey Davenport looked out
the window of his Marshall County home and saw Saxton standing on the
central air conditioning unit at the home next door, occupied by someone we
will call Jane Jones and her husband. Saxton was using this perch to look
into Jones’ bathroom window. Davenport asked his housemate to watch Saxton
while he went outside. While doing that, the housemate also telephoned
911.
Davenport went out into the yard and yelled at Saxton, who began to
run and eventually made his way to a nearby truck. Davenport tried to stop
Saxton from leaving, but after a brief scuffle Saxton managed to drive
away. Davenport got the plate number, though, and the housemate gave it to
the police over the telephone.
Saxton was in a sufficient hurry that he ran a stop sign, and officer
John Weir stopped him. Weir noticed that Saxton’s plate number and vehicle
matched the description the police had received from the housemate, and
Weir took him into custody. Davenport later identified Saxton as the
perpetrator.
The State sought to revoke Saxton’s probation by alleging that he had
committed the crime of voyeurism, which is defined as peeping into an
occupied dwelling of another person without the consent of the other
person. Ind. Code Ann. § 35-45-4-5(a) (West 1998). “Peeping” is “any
looking of a clandestine, surreptitious, prying, or secretive nature.”
Ind. Code Ann. § 35-45-4-5(b) (West 1998).
Saxton urges on appeal that the State did not establish that his
peeping was without permission, largely relying on the fact that there was
no direct evidence from Ms. Jones offered during the hearing. The Court of
Appeals agreed and reversed. Saxton v. State, 784 N.E.2d 1022 (Ind. Ct.
App. 2003). We granted transfer.
A trial court may revoke a sentence that has been suspended to
probation if the State establishes by a preponderance of the evidence that
the probationer has violated a condition of probation. Ind. Code Ann. § 35-
38-2-3(e) (West 1998). In this case, the condition in question is
straightforward: the commission of a crime.
We conclude that the evidence was sufficient. Davenport’s housemate
testified about suspecting there was a peeping tom in the neighborhood as
the result of observing tracks in the snow from her home to Jones’ air
conditioner, apparently sometime before May 13th. More probative, really,
were the time of day and Saxton’s reaction to being discovered. 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 peeping without the permission of the target?
We say yes, and affirm the judgment of the trial court.
DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.