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Indiana Supreme Court takes up mall shoe cam case

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RICK CALLAHAN,

Associated Press

INDIANAPOLIS (AP) The Indiana Supreme Court is taking up the case of a man who used a camera hidden in one of his shoes to secretly shoot video under the skirts of teenage girls at an Indianapolis shopping mall.

The state's high court is scheduled to hear oral arguments Thursday involving David Delagrange, a 44-year-old Fort Wayne man convicted of attempted child exploitation and sentenced in March 2012 to six months in prison.

Delagrange was arrested in in February 2010 at an Indianapolis mall and found to have video images of a 15-year-old girl and three 17-year-olds. Court records state he did not deny trying to film beneath the skirts of the girls, one of whom said he stood so close to her she could feel his breath.

Delagrange entered stores at the mall, including a clothing store for teen girls, and secretly placed his camera-equipped shoe between their legs to take pictures under their skirts or dresses, according to court records.

But the state Court of Appeals threw out his conviction in January, finding his behavior did not violate state law pertaining to child exploitation.

In its 2-1 ruling, the court found that the Marion County jury that convicted Delagrange should have found him innocent because the law would have required the girls to have exposed themselves in order to support a conviction, and prosecutors presented no such evidence.

The court found the law requires prosecutors to prove Delagrange tried to obtain images of "sexual conduct by a child" specifically that they would have had to expose their genitals in a manner "intended to satisfy or arouse" another person's sexual desires.

"The phrasing of the statute demands the child be performing the sexual conduct," Judge Melissa May wrote in ruling.

In his dissenting opinion, Judge Edward Najam Jr. said the law could not be interpreted to depend on the child's intentions, writing that doing so "undermines the very foundation of the statute, which was designed to protect children."

In its brief asking the court to reinstate Delagrange's conviction, state attorneys said the evidence supports the attempted child exploitation charges. Despite Delagrange's contention at trial that he had tried to film the feet or stockings of women, it notes the images he obtained were only of teenage girls and were filmed up their skirts.

Jennifer A. Drobac, a professor at the Indiana University School of Law in Indianapolis, said the high court will have to consider the vague elements of the state's child exploitation law the case illuminated.

"A logical reading of the law is that the child would have to intend it. But that doesn't make any sense because the child is the one you're trying to protect in the statute," she said.

Delagrange was originally also charged with voyeurism, but those charges were dropped on the basis that voyeurism means peeping inside a dwelling, not looking up a skirt in a public place.

State lawmakers have since changed Indiana's voyeurism law to cover public photography.

No matter how the court rules, Drobac said she hopes the justices suggest that state lawmakers also tweak the wording of the state's child exploitation law.

Delagrange's attorney, Michael Borschel, said he would try to persuade the court during Thursday's arguments that the state appeals court was correct in its ruling overturning his client's conviction.

"That's it in a nutshell," he said.

 

Posted 10/9/2013