Straw v. State, No. 19A-CR-934, __ N.E.3d __ (Ind. Ct. App., Sept. 30, 2019).

Pyle, J.

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.

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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.

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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[.]”

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A jury convicted Straw of voyeurism. During the sentencing hearing, the trial court sentenced Straw to two (2) years and sixty (60) days, with the two (2) years suspended to probation. The trial court further ordered Straw to comply with the standard conditions of probation as well as a probation addendum order. Pursuant to the terms of the addendum order, Straw was required to register as a sex offender; complete an electronic monitoring supervisory period; attend, participate in, and successfully complete a sexual perpetrator treatment program; not reside within 100 feet of school property; not possess obscene matter or child pornography; and not use a social networking site or chat room to communicate with a child less than sixteen years old. Straw now appeals the imposition of the condition that required him to register as a sex offender.

“Probation is a criminal sanction wherein a convicted defendant specifically agrees to accept conditions upon his behavior in lieu of imprisonment.” Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct. App. 1999). Trial courts have broad discretion in determining the appropriate conditions of a defendant’s probation. Bratcher v. State, 999 N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied. We will not set aside a trial court’s probation terms unless it has abused its discretion.

Straw argues that the trial court abused its discretion when it imposed a probation condition that required him to register as a sex offender. He specifically contends that the trial court abused its discretion because the crime for which he was convicted, voyeurism, is not listed as an offense requiring sex offender registration under INDIANA CODE § 11-8-8-4.5. He is correct.

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INDIANA CODE § 11-8-8-7 provides that a sex offender must register under that chapter. [Section] 4.5 defines a sex offender as a person convicted of any of the offenses set forth in the statute. These offenses include, among others, child molesting, child exploitation, vicarious sexual gratification, child solicitation, child seduction, sexual misconduct with a minor, incest, and possession of child pornography. Voyeurism is not included in this list of offenses. Nor was Straw convicted of any of the offenses enumerated in the statute. When the legislature defines a word, the courts are bound by that definition. State v. D.M.Z., 674 N.E.2d 585, 588 (Ind. Ct. App. 1996). …

Here, the legislature did not include a person convicted of voyeurism in its definition of sex offender. It could have easily done so but chose not to do so. A trial court is without authority to order a person who has not been convicted of one of the offenses set forth in the statute to register as a sex offender. Accordingly, the trial court abused its discretion in ordering Straw to register as a sex offender as a condition of his probation.

Reversed and remanded with instructions.

Robb, J., and Mathias, J., concur.

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