FOR PUBLICATION                                         FILED
                                                      Jan 25 2013, 9:08 am


                                                             CLERK
                                                           of the supreme court,
                                                           court of appeals and
                                                                  tax court




ATTORNEY 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
                   COURT OF APPEALS OF INDIANA

DAVID DELAGRANGE,                            )
                                             )
     Appellant-Defendant,                    )
                                             )
             vs.                             )       No. 49A04-1203-CR-144
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                   APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Sheila A. Carlisle, Judge
                          Cause No. 49G03-1003-FC-15460


                                  January 25, 2013

                            OPINION - FOR PUBLICATION

MAY, Judge
        David Delagrange appeals his conviction of four counts of Class C felony attempted

child exploitation.1 Delagrange presents two issues, one of which we find dispositive:

Whether the trial court erred when it denied Delagrange’s motion for directed verdict.2 We

reverse and remand.

        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,3 and Class A misdemeanor resisting

law enforcement.4

        At the time Delagrange committed these acts, the voyeurism statute stated, in relevant

part:

        (a) A person:
               (1) who:
                      (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 peeps into an area where an occupant of the area reasonably

1
  Ind. Code § 35-42-4-4 (child exploitation); Ind. Code § 35-41-5-1 (attempt).
2
  We held oral argument on November 27, 2012, in our Courtroom at the Indiana Statehouse. We commend
counsel on the quality of their advocacy.
3
  Ind. Code § 35-45-4-5 (2005).
4
  Ind. Code § 35-44-3-3.
                                                 2
              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.

Ind. Code § 35-45-4-5(a) (2005). 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).

       The child exploitation statute states, in relevant part, “(b) A person who knowingly or

intentionally: (1) manages, produces, sponsors, presents, exhibits, photographs, films,

videotapes, or creates a digitized image of any performance or incident that includes sexual

conduct by a child under eighteen (18) years of age . . . commits child exploitation, a Class

C felony.” Ind. Code § 35-42-4-4(b)(1) (emphasis added). “Sexual conduct” means:

       sexual intercourse, deviate sexual conduct, exhibition of the uncovered
       genitals intended to satisfy or arouse the sexual desires of any person,
       sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an
       animal, or any fondling or touching of a child by another person or of another
       person by a child intended to arouse or satisfy the sexual desires of either the
       child or the other person.

Ind. Code § 35-42-4-4(a)(4).

       Due process prohibits Delagrange’s convictions under the statutes that existed at the


                                              3
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.

                            FACTS AND PROCEDURAL HISTORY

          Delagrange moved to dismiss the voyeurism and attempted child exploitation charges.

    The parties stipulated to evidence into the record describing the events of February 27. The

trial court dismissed the voyeurism charges, but not the attempted child exploitation charges.

    The trial court certified the partial denial of Delagrange’s motion to dismiss for interlocutory

appeal.

          A panel of this court affirmed the denial of Delagrange’s motion to dismiss the child

exploitation charges, holding Delagrange’s activity could fit within the statutory definition of

sexual conduct. The case was remanded for trial.

          Delagrange’s case proceeded to jury trial. After the State presented its case in chief,

Delagrange moved for a directed verdict. The trial court denied Delagrange’s motion, and

Delagrange testified on his own behalf. The jury returned a guilty verdict on the four Class C

felony attempted child exploitation charges as well as on the Class A misdemeanor resisting

law enforcement charge.5 The trial court entered convictions and sentenced Delagrange to

four years incarcerated with three years suspended to probation.


5
    Delagrange does not appeal his conviction of Class A misdemeanor resisting law enforcement.
                                                     4
                             DISCUSSION AND DECISION

       At the close of the State’s case, Delagrange requested a directed verdict. For a trial

court to grant a motion for a directed verdict,

       there must be a total lack of evidence regarding an essential element of the crime, or
       the evidence must be without conflict and susceptible only to an inference in favor of
       the innocence of the defendant. If the evidence is sufficient to sustain a conviction
       upon appeal, then a motion for a directed verdict is properly denied; thus, our standard
       of review is essentially the same as that upon a challenge to the sufficiency of the
       evidence. We neither reweigh evidence nor judge witness credibility, but consider
       only the evidence that supports the conviction and the reasonable inferences to be
       drawn therefrom in order to determine whether there is substantial evidence of
       probative value from which a reasonable trier of fact could have drawn the conclusion
       that the defendant was guilty of the crime charged beyond a reasonable doubt.

Edwards v. State, 862 N.E.2d 1254, 1262 (Ind. Ct. App. 2007) (citations omitted), trans.

denied.

       The State charged Delagrange with four counts of Class C felony attempted child

exploitation based on incidents involving four girls under age eighteen. Each count had

identical language, except for the age and name of the alleged victim. For example, Count I

alleged:

       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 film and/or videotape and/or create a digitized image of a performance
       or incident that includes sexual conduct by a child under eighteen (18) years of
       age, to wit: 15 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,
       who is [A.K.]

(App. at 131.) Delagrange does not dispute he “knowingly or intentionally sought to capture

up-skirt photos of panties, boots, high heels, etc., of adult women,” (Br. of Appellant at 11),

                                              5
but argues the charging information does not allege he attempted to commit an act that could

be considered “sexual conduct by a child.”

       The State argues this issue was decided as part of Delagrange’s interlocutory appeal

and, thus, is res judicata. The doctrine of res judicata bars litigation of a claim after a final

judgment has been rendered in a prior action involving the same claim between the same

parties. Small v. Centocor, Inc. 731 N.E.2d 22, 26 (Ind. Ct. App. 2000), reh’g denied. The

doctrine exists to prevent repetitive litigation of the same issue. Id.

       Delagrange’s interlocutory appeal challenged the trial court’s denial of his motion to

dismiss the charges against him. In that appeal he argued “the facts, as pleaded in the

charging information, do not constitute crimes of attempted child exploitation . . . [because]

the statutory definition of ‘sexual conduct’ does not encompass his activity at the mall that

day.” Delagrange, 951 N.E.2d at 595. A divided panel of our court held the allegations in

Delagrange’s charging information, taken as true, “adequately state the elements of attempt

and child exploitation.” Id. The majority examined the statutory definition of “sexual

conduct” pursuant to Ind. Code § 35-42-4-4(a), specifically the clause, “exhibition of the

uncovered genitals intended to satisfy or arouse the sexual desires of any person.” In

addition, the majority analyzed the dictionary definition of the word “exhibition,” and held it

meant, “to show or display.” Delagrange, 951 N.E.2d 595.

       That panel did not, however, examine the implications of the clause “by a child” in the

child exploitation statute, which is our focus in this opinion. As the opinion on interlocutory

appeal did not address the portion of the statute at issue here, the issue herein is not res

                                               6
judicata.6

        The charging information follows the language of the child exploitation statute, which

states in relevant part: “(b) A person who knowingly or intentionally: (1) manages, produces,

sponsors, presents, exhibits, photographs, films, videotapes, or creates a digitized image of

any performance or incident that includes sexual conduct by a child under eighteen (18)

years of age . . . commits child exploitation, a Class C felony.” Ind. Code § 35-42-4-4(b)(1)

(emphasis added). “Sexual conduct” means:

        sexual intercourse, deviate sexual conduct, exhibition of the uncovered
        genitals intended to satisfy or arouse the sexual desires of any person,
        sadomasochistic abuse, sexual intercourse or deviate sexual conduct with an
        animal, or any fondling or touching of a child by another person or of another
        person by a child intended to arouse or satisfy the sexual desires of either the
        child or the other person.

Ind. Code § 35-42-4-4(a)(4).

        In support of his motion for a directed verdict, Delagrange argued:

        Judge, this statute, the child exploitation statute, is a statute for child
        pornography producers, directors. And this – this exhibition of the uncovered
        genitals – first of all, there has to be an exhibition of the genitals by the
        person who is being photographed. And then that – that exhibition then has
        to be digitized or created – either video or still camera.
                And that – those – those – the facts in this case don’t apply to the
        statute. That’s not what happened. There is nothing remotely close in the
        evidentiary chain that related to that statute.

6
   The standard of review for a motion to dismiss is different than for a directed verdict. Our standard of
review for a motion to dismiss considers all the facts alleged in the information to be true, State v. Bilbery, 743
N.E.2d 796.798 (Ind. Ct. App. 2001): “[q]uestions of fact to be decided at trial . . . are not property raised by a
motion to dismiss.” State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). By contrast, our review of
the denial of a directed verdict focuses on the evidence presented at trial. See Edwards v. State, 862 N.E.2d at
1262 (For a trial court to grant a motion for a directed verdict, “there must be a total lack of evidence regarding
an essential element of the crime, or the evidence must be without conflict and susceptible only to an inference
in favor of the innocence of the defendant.”).

                                                        7
(Tr. at 196-97) (emphasis added). The trial court denied Delagrange’s motion.

        When interpreting statutes, we use the following standard:

        The first step in interpreting a statute is to determine whether the Legislature
        has spoken clearly and unambiguously on the point in question. When a
        statute is clear and unambiguous, we need not apply any rules of construction
        other than to require that words and phrases be taken in their plain, ordinary,
        and usual sense. Clear and unambiguous statutes leave no room for judicial
        construction. However when a statute is susceptible to more than one
        interpretation it is deemed ambiguous and thus open to judicial construction.
        And when faced with an ambiguous statute, other well-established rules of
        statutory construction are applicable. One such rule is that our primary goal of
        statutory construction is to determine, give effect to, and implement the intent
        of the Legislature. To effectuate legislative intent, we read the sections of an
        act together in order that no part is rendered meaningless if it can be
        harmonized with the remainder of the statute. We also examine the statute as a
        whole. And we do not presume that the Legislature intended language used in
        a statute to be applied illogically or to bring about an unjust or absurd result.

City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind. 2007). Neither party argues the language

of the statute is ambiguous, and thus we apply the “plain, ordinary, and usual” meaning of the

words and phrases in the statute.7

        The portion of the child exploitation statute relevant to the instant appeal required the

State to prove Delagrange attempted to photograph, film, videotape or created a digitized

image of any performance or incident that includes sexual conduct, here the “exhibition of

the uncovered genitals intended to satisfy or arouse the sexual desires of any person,” Ind.

Code § 35-42-4-4(a)(4), “by a child under eighteen (18) years of age.” Ind. Code § 35-42-4-


7
  We agree with the dissent that the child exploitation statute is poorly written, making the intent thereof
somewhat unclear. However, when the legislative intent of a statute is unclear, we must construe the statute
against the State. Smith v. State, 675 N.E.2d 693, 697 (Ind. 1996).

                                                     8
4(b)(1) (emphasis added). The phrasing of the statute demands the child be performing the

sexual conduct, which herein required the child be exhibiting her uncovered genitals with the

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.

        The State presented no evidence the victims exhibited their genitals8 or intended to

satisfy anyone’s sexual desire. For those reasons, we hold the trial court should have directed

a not guilty verdict because the State did not to present evidence to support the elements of

Class C felony child exploitation. Accordingly, we reverse Delagrange’s four counts of

Class C felony child exploitation and remand to the trial court for proceedings consistent

with this opinion.

        Reversed and remanded.

KIRSCH, J., concurs.

NAJAM, J., dissents with separate opinion.




8
 In fact, the evidence indicates Delagrange filmed the victims on a winter day and all of the captured images
were of pantyhose, leggings, boots, and panties.
                                                     9
                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID DELAGRANGE,                                  )
                                                   )
       Appellant-Petitioner,                       )
                                                   )
              vs.                                  )       No. 49A04-1203-CR-144
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Respondent.                        )

_______________________________________________________________________

NAJAM, Judge, dissenting

       I respectfully dissent. I would hold that the law of the case doctrine bars Delagrange’s

attempt to relitigate an issue that this court squarely addressed in Delagrange v. State, 951

N.E.2d 593 (Ind. Ct. App. 2011) (“Delagrange I”), trans. denied. As we explained in

Indiana-Kentucky Electric Corporation v. Save the Valley, Inc., 953 N.E.2d 511, 517-18

(Ind. Ct. App. 2011):

       The law of the case doctrine provides that an appellate court’s determination of
       a legal issue binds both the trial court and the appellate court in any subsequent
       appeal involving the same case and substantially the same facts. Murphy v.
       Curtis, 930 N.E.2d 1228, 1234 (Ind. Ct. App. 2010); see also Pepper v. United
       States, ––– U.S. –––, (2011) (“[A]s most commonly defined, the [law of the
       case] doctrine posits that when a court decides upon a rule of law, that decision
       should continue to govern the same issues in subsequent stages in the same
       case.”). The purpose of the doctrine is to minimize unnecessary relitigation of
       legal issues once they have been resolved by an appellate court. Murphy, 930
       N.E.2d at 1234. This doctrine is based upon the sound policy that once an
                                                10
       issue is litigated and decided, that should be the end of the matter. Id. To
       invoke this doctrine, the matters decided in the earlier appeal must clearly
       appear to be the only possible construction of an opinion. Id. Thus, questions
       not conclusively decided in the earlier appeal do not become the law of the
       case. Id.

              Indiana has applied this doctrine in its strictest sense and has resisted
       creating exceptions to the strict application of the doctrine. Ind. Farm Gas
       Prod. Co. v. S. Ind. Gas & Elec. Co., 662 N.E.2d 977, 981 (Ind. Ct. App.
       1996), trans. denied. In fact, Indiana courts have held numerous times that the
       law of the case must be followed even when the earlier decision is deemed to
       be incorrect. Id. A court, however, may revisit its prior decision under
       extraordinary circumstances, such as when there is a significant change in the
       substantive law. Id.

       In Delagrange I, Delagrange appealed the trial court’s denial of his motion to dismiss

wherein he alleged that “the facts, as pleaded in the charging information, do not constitute

crimes of attempted child exploitation.” 951 N.E.2d at 595. In particular, Delagrange’s

motion to dismiss included the following argument:

       [A]ssuming for purposes of this Motion only . . . that the factual allegations
       against Defendant are true, Defendant did not commit the crime of Attemt[ed]
       Child Exploitation.

              The foundational requirement for a violation of I.C. § 35-42-4-4 is
       “sexual conduct.” “Sexual conduct” means sexual intercourse, deviate sexual
       conduct, exhibition of the uncovered genitals intended to satisfy or arouse the
       sexual desires of any person, sado-masochistic abuse, sexual intercourse or
       deviate sexual conduct with an animal, or any fondling or touching of a child
       by another person or of another person by a child intended to arouse or satisfy
       the sexual desires of either the child or the other person.

              Here, as with the voyeurism counts, the State’s evidence consists of the
       same up-skirt or “panty shot” footage, namely that of fully clothed and
       unwitting females in a shopping mall. . . .

              The Child Exploitation statute applies to people who knowingly or
       intentionally produce or trade in child pornography and it does not apply to
       misguided individuals in search of “panty shots” at the Mall. While the
                                             11
       alleged conduct here is not something that should be condoned, not all
       irresponsible behavior is criminal conduct that rises to the level requiring
       punishment through the penal code.

Appellant’s App. at 75-76 (emphasis added). Because Delagrange assumed, for purposes of

his motion to dismiss, that the facts as alleged by the State were true, the posture of this

appeal, following a jury trial, is essentially the same as that of the first appeal. In other

words, we are merely asked to reexamine whether the facts as alleged in the information, and

which are supported by the evidence presented at trial, constitute the crime of child

exploitation.

       As we observed in Delagrange I,

       [f]or each count [of attempted child exploitation], the State alleges that
       Delagrange “engage[d] in conduct that constituted a substantial step towards”
       the offense of “knowingly or intentionally produc[ing] and/or creat[ing] and/or
       film[ing] and/or videotap[ing] and/or [creating a] digitized image of a
       performance or incident that includes sexual conduct by a child under eighteen
       (18) years of age” by using his shoe camera to “record[] video of the area
       under the skirt or dress of the child, . . .”

951 N.E.2d at 595. And we held that “[t]hese allegations adequately state the elements of

attempt and child exploitation.” Id.

       In particular, in his appeal from the denial of his motion to dismiss, Delagrange

challenged only one facet of the definition of “sexual conduct,” namely, whether his conduct

constituted “exhibition of the uncovered genitals intended to satisfy or arouse the sexual

desires of any person. . . .” Id. Delagrange asserted that “based on the facts as alleged, ‘[n]o

one attempted to do anything to exhibit exposed genitals.’” Id. In addressing this argument,

we turned to the American Heritage Dictionary of the English Language, which defines

                                              12
“exhibit” as “to show or display.” Id. And we held that, “[i]f Delagrange had taken

photographs of uncovered genitals under the alleged victims’ skirts or dresses, then he would

have shown or displayed them as a digital image. Delagrange’s behavior is sufficient to

constitute an attempted exhibition as described by statute.” Id. (emphasis added).

          In this appeal after his convictions, Delagrange alleges that the State presented

insufficient evidence to show that he knowingly or intentionally captured a performance or

incident that included sexual conduct by a child as charged in the information. In particular,

he directs us to evidence showing that he did not exhibit the uncovered genitalia of any of his

minor victims. And he contends that any inference that he was attempting to find uncovered

genitalia in his quest is “unreasonable.” Brief of Appellant at 18. But his argument in

support of that contention ignores the fact that he was charged with and convicted of

attempted child exploitation. And, again, this court squarely rejected this argument in

Delagrange I.

          The majority reexamines the element of “sexual conduct by a child” and concludes

that it

          demands the child be performing the sexual conduct, which herein required the
          child be exhibiting her uncovered genitals with the 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.

Slip op. at 9 (emphasis added).

          First, again, I would hold that the law of the case doctrine precludes such a

reconsideration of the relevant statutory language. But, second, the child exploitation statute

                                               13
cannot be interpreted to require that a child be an active participant in the exhibition of her

genitals or that the child have the intent to satisfy sexual desires. Such an interpretation

improperly focuses the elements of the crime on the actions of the child and undermines the

very foundation of the statute, which was designed to protect children. Indeed, the statute

protects the very young, including infants and toddlers, who have no awareness of what

sexual desires are, as well as children of all ages who are drugged or otherwise unwittingly

manipulated by a perpetrator. So I cannot agree that “sexual conduct by a child” mandates

any active participation whatsoever by a child. To the contrary, and as we have already held,

only the perpetrator need “show or display” the uncovered genitals of a minor child for the

sexual desires of any person. See Delagrange I, 951 N.E.2d at 595.

       In sum, the law of the case doctrine precludes our consideration of the issues raised in

this appeal. And, to the extent that the majority reads the child exploitation statute to require

a child victim to actively participate in the sexual conduct element of the crime, I disagree.

While the statute may not be well-drafted, the legislature cannot have intended that

interpretation. See State ex rel. Hatcher v. Lake Superior Court, Room Three, 500 N.E.2d

737, 739 (Ind. 1986) (observing that “[u]nder our rules of statutory construction, it cannot be

presumed the General Assembly intended language used in a statute to be applied in an

illogical manner.”) Such an interpretation undermines the goal of the statute, which is to

criminalize the exploitation of child victims. For these reasons, I would affirm Delagrange’s

convictions for attempted child exploitation.



                                               14
