A man who secretly photographed minor girls in their underwear is not guilty of child exploitation because those girls were not intentionally exhibiting themselves, a divided Indiana Court of Appeals has ruled.
David Delagrange was convicted of four counts of Class C felony attempted child exploitation after he was caught surreptitiously photographing underneath the skirts of several females, including four minors. Delagrange had outfitted his shoe with a video camera and went to Castleton Square Mall to take pictures of panties, boots, and high heels of adult women.
Delagrange appealed on the grounds the trial court erred when it denied his motion for directed verdict. He argued the charging information does not constitute crimes of attempted child exploitation.
The COA reversed the four counts of child exploitation and remanded to the trial court for proceedings.
For its ruling in David Delagrange v. State of Indiana, 49A04-1203-CR-144, the COA turned its attention to Ind. Code 35-42-4-4(b)(1). The court focused on the definitions of “sexual conduct” and the phrase “by a child.”
The majority found “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.” Because the state did not present any evidence that the victims intentionally exhibited themselves, the trial court should have directed a not guilty verdict.
Judge Edward Najam Jr. dissented, arguing that the phrase, “sexual conduct by a child,” does not mandate any active participation by the minor.
“…the child exploitation statute 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,” Najam wrote. “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.”