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Straw v. State

Court of Appeals of Indiana

September 30, 2019

Marty V. Straw, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal 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, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

          PYLE, JUDGE.

         Statement of the Case

         [¶1] 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.[1] 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.

         [¶2] We reverse and remand with instructions.

         Issue

         Whether the trial court abused its discretion when it ordered Straw to register as a sex offender after he was convicted of voyeurism.

         Facts

         [¶3] 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.

         [¶4] 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).

         [¶5] Straw was arrested and charged with Level 6 felony voyeurism.[2] 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).

         [¶6] 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 ...


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