Marty V. Straw, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Allen Superior Court No. 02D04-1804-F6-403. The
Honorable Wendy W. Davis, Judge
Attorney for Appellant Randall J. Hammond Deputy Public
Defender Leonard, Hammond, Thoma & Terrill Fort Wayne,
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Megan M. Smith Deputy Attorney General
of the Case
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 Level 6 felony
voyeurism. 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.
We reverse and remand with instructions.
the trial court abused its discretion when it ordered Straw
to register as a sex offender after he was convicted of
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.
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).
Straw was arrested and charged with Level 6 felony
voyeurism. 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).
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 ...