The Indiana Court of Appeals split on whether a man committed attempted child exploitation when he tried to take pictures up teenagers’ skirts at a mall using a camera attached to his shoe.
On interlocutory appeal, David Delagrange challenged the trial court’s decision to not dismiss four counts of Class C felony attempted child exploitation for trying to snap pictures under four girls’ skirts. The alleged victims were 17 years old or 15 years old. He argued that the statutory definition of “sexual conduct” in place at the time when he tried to take the photos doesn’t describe his activity. The element of “sexual conduct” the parties discuss is “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desires of any person … .”
Because he was charged with attempted child exploitation, it doesn’t matter whether he actually took photographs of uncovered genitals, the majority concluded. Senior Judge John Sharpnack and Judge Terry Crone also found his behavior was sufficient to constitute an attempted exhibition as described by statute.
“The State has alleged that Delagrange knowingly or intentionally attempted to create an image of sexual conduct, which is a sufficient statement of Delagrange’s mental state to survive a motion to dismiss. At trial, the State will bear the burden of proving that Delagrange possessed the culpable mental state, but the State does not need to meet that burden of proof at this stage,” wrote Judge Sharpnack in David Delagrange v. State of Indiana, No. 49A02-1010-CR-1086.
Judge John Baker dissented because he believed Delagrange’s activity at the Indianapolis mall didn’t satisfy the definition of “sexual conduct” as set forth Indiana Code 35-42-4-4 because nothing he did that day could be considered to have involved the “exhibition of the uncovered genitals intended to satisfy or arouse the sexual desire of any person.” His photographs may be morally unacceptable and alarming, but they don’t amount to attempted child exploitation under the current versions of statute, he wrote.