Public voyeurism statute not unconstitutionally vague as applied, COA rules

December 11, 2014

A man who argued he lacked sufficient notice that the public voyeurism law prohibits his conduct because he filmed girls wearing bathing suits or a skort lost his case before the Indiana Court of Appeals Thursday.

Steven Sandleben appealed his two counts of Class D felony public voyeurism and one count of Class A misdemeanor public voyeurism. The felony counts came from his use of an underwater camera at a public pool to film the crotches of two 12-year-old girls in bathing suits. He zoomed in on their crotches and was able to see exposed private areas at times. The misdemeanor count is a result of his taking an upskirt photo in a store of a four-year-old girl who was wearing a skort.

He argued in Steven M. Sandleben v. State of Indiana, 82A05-1403-CR-95, that the evidence didn’t support his voyeurism convictions. The state had to prove beyond a reasonable doubt that he, without consent and with intent to peep at the private area of an individual, peeped at the private area and recorded an image by means of a camera. Police found footage of the 12-year-olds on his hard drive and on a website, and images of the four-year-old on an SD card.

Private area is defined as “the naked or undergarment clad genitals, pubic area, or buttocks of an individual.”

He claimed he only intended to film a bathing suit or shorts portion of the skort, neither of which is an undergarment.

“But the public voyeurism statute is written in the disjunctive: it speaks of either the undergarment-clad or the naked genitals, pubic area or buttocks,” Judge Edward Najam wrote. “And, here, Sandleben’s course of conduct supports a reasonable inference that Sandleben intended to film his victims’ private areas, not a pair of shorts or a bathing suit. Thus, we agree with the trial court that Sandleben attempted to commit public voyeurism.”

Sandleben also claimed that the public voyeurism statute as applied to him is unconstitutionally vague because the “private area” definition does not include bathing suits or skorts, so he lacked sufficient notice the law prohibited his conduct. But his conduct precisely fits that prohibited by the statute, Najam wrote, as he did not merely photograph or video someone wearing a bathing suit or skort. He instead zoomed in on the girls’ crotches and actively placed a camera up the four-year-old’s skort.

The judges also affirmed his aggregate four-year sentence, with three years executed in the Department of Correction and one year in community corrections. And while they found the trial court abused its discretion when it admitted certain business records over objection, those records were cumulative, which made the error harmless beyond a reasonable doubt.


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