                                                                              FILED
                                                                         Sep 30 2019, 9:05 am

                                                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Randall J. Hammond                                        Curtis T. Hill, Jr.
      Deputy Public Defender                                    Attorney General of Indiana
      Leonard, Hammond, Thoma & Terrill                         Megan M. Smith
      Fort Wayne, Indiana                                       Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Marty V. Straw,                                           September 30, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-934
              v.                                                Appeal from the Allen Superior
                                                                Court
      State of Indiana,                                         The Honorable Wendy W. Davis,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                02D04-1804-F6-403



      Pyle, Judge.


                                        Statement of the Case
[1]   Marty Straw (“Straw”) appeals the trial court’s order requiring him, as a

      condition of probation, to register as a sex offender after he was convicted of




      Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019                      Page 1 of 6
      Level 6 felony voyeurism.1 Concluding that the trial court abused its discretion

      when it ordered Straw to register as a sex offender, we reverse and remand with

      instructions for the trial court to remove the sex offender registration

      requirement as a condition of Straw’s probation.


[2]   We reverse and remand with instructions.


                                                      Issue
                 Whether the trial court abused its discretion when it ordered
                 Straw to register as a sex offender after he was convicted of
                 voyeurism.


                                                      Facts
[3]   When K.T. (“K.T.”) was a freshman in high school, she lived with her father,

      Straw. During that time, K.T. twice found her father’s phone in the bathroom

      when she went in the room to shower. The first time she found the phone, it

      was propped up on the counter facing the shower and was recording her. K.T.

      deleted the video. The second time she found the phone, it was propped up in a

      bathroom decoration with some towels and clothes on top of it. As soon as

      K.T. saw the camera, she left the bathroom. Another day, while closing tabs on

      Straw’s phone, K.T. noticed on the phone a photograph of the top half of her

      body from her head to her waist. K.T. was wearing nothing but a bra.




      1
          IND. CODE § 35-45-4-5.


      Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019      Page 2 of 6
[4]   K.T. eventually told her mother what had been happening at Straw’s house. A

      Department of Child Services (“DCS”) case worker and a Fort Wayne Police

      Department Officer interviewed K.T., and a digital forensics examiner analyzed

      Straw’s phone. Following the phone analysis, a detective showed the photos

      that had been found on the phone to K.T. Straw had taken one of the photos, a

      picture of K.T. in her underwear, by sliding his camera under his daughter’s

      bedroom door. K.T., who was unaware that the photograph had been taken,

      showed “a clear emotional response” upon seeing it. (Tr. Vol. 1 at 227).


[5]   Straw was arrested and charged with Level 6 felony voyeurism.2 The charging

      information alleged that Straw had “knowingly or intentionally peep[ed] into

      an area where an occupant of the area reasonably c[ould] be expected to disrobe

      without the consent of another person, by means of a camera, video camera, or

      any other type of video recording device[.]” (App. Vol. 1 at 16).


[6]   At a jury trial, K.T. testified that Straw would frequently wrestle with her and

      press his penis against her while they were wrestling. K.T. further testified that

      one time Straw touched her vagina outside her clothing while they were

      wrestling. In addition, K.T. testified that on another occaision she had gone

      into the kitchen while Straw was eating some crackers. According to K.T.,

      Straw had crumbled the crackers, cupped his hand with the crackers in it, and

      put his hand down the front of K.T.’s pants under her underwear. Straw later




      2
          Straw was also charged with and acquitted of Level 5 felony sexual misconduct with a minor.


      Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019                             Page 3 of 6
      apologized to K.T. and told her that “it [had gone] too far[.]” (Tr. Vol. 1 at

      154).


[7]   A jury convicted Straw of voyeurism. During the sentencing hearing, the trial

      court sentenced Straw to two (2) years and sixty (60) days, with the two (2)

      years suspended to probation. The trial court further ordered Straw to comply

      with the standard conditions of probation as well as a probation addendum

      order. Pursuant to the terms of the addendum order, Straw was required to

      register as a sex offender; complete an electronic monitoring supervisory period;

      attend, participate in, and successfully complete a sexual perpetrator treatment

      program; not reside within 100 feet of school property; not possess obscene

      matter or child pornography; and not use a social networking site or chat room

      to communicate with a child less than sixteen years old. Straw now appeals the

      imposition of the condition that required him to register as a sex offender.


                                                   Decision
[8]   “Probation is a criminal sanction wherein a convicted defendant specifically

      agrees to accept conditions upon his behavior in lieu of imprisonment.”

      Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). Trial courts have

      broad discretion in determining the appropriate conditions of a defendant’s

      probation. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans.

      denied. We will not set aside a trial court’s probation terms unless it has abused

      its discretion. Id.




      Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019     Page 4 of 6
[9]    Straw argues that the trial court abused its discretion when it imposed a

       probation condition that required him to register as a sex offender. He

       specifically contends that the trial court abused its discretion because the crime

       for which he was convicted, voyeurism, is not listed as an offense requiring sex

       offender registration under INDIANA CODE § 11-8-8-4.5. He is correct.3


[10]   The law is well-established that criminal statutes must be strictly construed

       against the State and may not be enlarged beyond the fair meaning of the

       language used. Jackson v. State, 570 N.E.2d 1344, 1347 (Ind. Ct. App. 1991),

       trans. denied. In addition, criminal statutes may not be held to include offenses

       other than those clearly defined. Id.


[11]   INDIANA CODE § 11-8-8-7 provides that a sex offender must register under that

       chapter. INDIANA CODE § 11-8-8-4.5 defines a sex offender as a person

       convicted of any of the offenses set forth in the statute. These offenses include,

       among others, child molesting, child exploitation, vicarious sexual gratification,

       child solicitation, child seduction, sexual misconduct with a minor, incest, and

       possession of child pornography. Voyeurism is not included in this list of

       offenses. Nor was Straw convicted of any of the offenses enumerated in the

       statute. When the legislature defines a word, the courts are bound by that

       definition. State v. D.M.Z., 674 N.E.2d 585, 588 (Ind. Ct. App. 1996). Only




       3
         We affirm all other conditions in the addendum order because they are reasonably related to Straw’s
       rehabilitation and the protection of public safety. See Carswell, 721 N.E.2d at 1258 (holding that our review of
       probation conditions is limited by the principal that the conditions imposed must be reasonably related to the
       treatment of the defendant and the protection of public safety).

       Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019                               Page 5 of 6
       those cases, which are clearly within its meaning and intention can be brought

       within the statute. Id.


[12]   Here, the legislature did not include a person convicted of voyeurism in its

       definition of sex offender. It could have easily done so but chose not to do so.

       A trial court is without authority to order a person who has not been convicted

       of one of the offenses set forth in the statute to register as a sex offender.

       Accordingly, the trial court abused its discretion in ordering Straw to register as

       a sex offender as a condition of his probation.4


[13]   Reversed and remanded with instructions.


       Robb, J., and Mathias, J., concur.




       4
         The State’s reliance on Whitener v. State, 982 N.E.2d 439 (Ind. Ct. App. 2013), trans. denied, is misplaced.
       There, this Court affirmed the trial court’s order that Whitener register as a sex offender as a condition of his
       probation following his conviction for Class A felony burglary. Although burglary is not an enumerated
       offense under INDIANA CODE § 11-8-8-4, the underlying felony that Whitener intended to commit when
       committing the burglary was rape, which is an enumerated offense. Id. We further noted that Whitener had
       been found guilty of committing rape as a Class B felony, and the trial court had vacated his conviction based
       upon double jeopardy principles. Thus, we concluded that because Whitener’s crime involved the act of
       raping the victim it was under the trial court’s discretion under the facts of that case to order that he register
       as a sex offender as a condition of his probation. Id. Here, however, Straw was convicted of voyeurism,
       which is not an enumerated offense. Although he was charged with sexual misconduct with a minor, which
       is an enumerated offense, he was acquitted of that charge. Under these circumstances, the trial court abused
       its discretion in ordering him to register as a sex offender as a condition of probation.

       Court of Appeals of Indiana | Opinion 19A-CR-934 | September 30, 2019                                 Page 6 of 6
