Chiszar v. State

• Citation: 936 N.E.2d 816
• Decision Date: 18 March 2011
• Docket Number: No. 91A04-1004-CR-290.,91A04-1004-CR-290.
• Parties: Sean H. CHISZAR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Court of Appeals of Indiana

936 N.E.2d 816

Sean H. CHISZAR, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff.

No. 91A04-1004-CR-290.

Court of Appeals of Indiana.

Oct. 29, 2010.

Rehearing Denied March 18, 2011.

Kelly Leeman, Logansport, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Arturo Rodriguez II, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Sean Chiszar appeals his convictions for two counts of Voyeurism, as Class D felonies; three counts of Possession of Child Pornography, Class D felonies; Possession of Paraphernalia, as a Class A misdemeanor; Possession of Marijuana, as a Class A misdemeanor; and Battery, as a Class A misdemeanor, following a bench trial. He presents five issues for our review, which we consolidate and restate as four issues:

1. Whether the voyeurism statute is void for vagueness.

2. Whether the trial court abused its discretion when it admitted evidence obtained during a warrantless search.

3. Whether a subsequent search warrant was supported by sufficient probable cause.

4. Whether the State presented sufficient evidence to support two of his convictions.

We affirm.

FACTS AND PROCEDURAL HISTORY

On April 24, 2009, Chiszar's fiancee, L.G., was spending the night at Chiszar's house in White County. L.G. had fallen asleep with her clothes on in Chiszar's bedroom. At approximately 2:00 a.m. on April 25, L.G. awoke to find that Chiszar had removed her clothes and was attempting to have sexual intercourse with her. L.G. immediately heard "beeping sounds" coming from a video camera sitting next to the television, and she realized that Chiszar was recording her. Transcript at 226. L.G. asked him, "Why are you videotaping me?" Id. at 227. Chiszar responded that he was not videotaping her. L.G. then stated, "There is a camera. I'm looking at the camera. It is right there." Id. at 228. Chiszar again denied that he was videotaping her.

L.G. got up and tried to grab the video camera, but Chiszar got it first and ran out of the house and into the garage. L.G. chased him and confronted him in the garage. L.G. tried repeatedly to get the video camera from Chiszar, but he would not give it to her, and he ultimately threw it underneath a chair in the garage. When L.G. tried to retrieve it, Chiszar grabbed L.G. by her hair and "threw [her] into the car." Id. Chiszar retrieved the camera and ran inside to the kitchen, and L.G. followed.

Chiszar's minor son, who had been sleeping in his bedroom, was awake and standing in the kitchen. Chiszar put the video camera inside a cupboard, and L.G. continued to struggle with Chiszar in an effort to get the camera. At one point, Chiszar threw L.G. against a kitchen island. Chiszar then went back to the garage, with the video camera, and locked himself inside the garage. L.G. instructed Chiszar's son to call the police, which he did.

White County Sheriff's Deputy Aaron Page arrived a short time later and found Chiszar and L.G. in the front yard. L.G. was "crying" and "pacing and screaming." Id. at 115. Deputy Page approached L.G. first and asked her to calm down, and he directed her to go "up by the house," but L.G. went inside the house. Id. at 118. Deputy Page began talking to Chiszar, who explained that L.G. "was just crazy, and she thought she had seen something that really wasn't there." Id. DeputyPage asked Chiszar to explain what he meant, to which he responded that

his ex-wife had left him because he had been taping her in a sexual nature without her permission, and he had told [L.G. about] that prior to them getting engaged, and she thought that she had [seen] a video camera [that night], and that he was possibly taping her, and she freaked out and went crazy and started hitting him and whatnot.

Id. at 119. Deputy Page explained to Chiszar that he was going to go inside to talk to L.G., and Chiszar asked whether he could also go inside the house to be with his children, and Deputy Page assented.

Once inside the house, Deputy Page found L.G. in Chiszar's bedroom packing her belongings. L.G. was still very upset, but she was able to tell Deputy Page about the video camera and the ensuing struggle with Chiszar. A short time later, two other sheriff's deputies arrived and entered the house.

White County Sheriff's Deputy Jared Baer and Reserve Deputy Matt Banes arrived, knocked on the door, and entered Chiszar's house. They found Chiszar sitting with his daughter in the living room just inside the front door. Deputy Baer asked Chiszar where the other deputy was, and he directed Deputy Baer to his bedroom. After Deputy Baer spoke briefly with Deputy Page, Deputy Baer returned to speak to Chiszar to get his version of events.

Deputy Baer and Chiszar went outside to talk. Chiszar denied having videotaped L.G. Deputy Baer advised Chiszar that he was not under arrest, and he asked Chiszar for consent to search the garage for the alleged video camera and/or tape. Chiszar gave his consent to search the garage.

The three deputies began searching the garage. Deputy Banes found a brown paper bag inside a file cabinet, and the bag contained a baggie with a "green, brown, leafy substance[;]" a lighter; a "red metal smoking device[;]" some rolling papers; and a cigarette roller. Id. at 173-74. Deputy Banes pulled the baggie out and asked Chiszar what it was. Chiszar responded that it was marijuana and that it belonged to him. The deputies then resumed searching for the video camera. Deputy Baer found a locked toolbox and asked Chiszar to unlock it, but Chiszar said that he did not have the key. At some point, L.G. stated to Chiszar, "Just give me the tape, Sean, just give me the tape. Give me the tape, and this will all go away." Deposition of Jared Baer at 15. To which Chiszar responded, to the deputies, "You hear her, if I give her the tape, nothing will happen[.]" Id. at 16. Deputy Baer told Chiszar that they "do not make deals and that if he had the tape [they] needed the tape." Id.

At that point, Chiszar walked over to the refrigerator, reached up above it, and pulled a tape out from behind a piece of wood. Chiszar gave the tape to L.G. and said, "Here's the tape." Id. Deputy Baer asked Chiszar, "How do we know ... this is the tape of her? Where's the video camera?" Id. Chiszar replied, "She asked for the tape, I gave her the tape." Id. Deputy Baer asked, "How are we supposed to know that this is the tape that was taped tonight? When was this taped?" Id. Chiszar did not answer. Deputy Baer asked Chiszar where the video camera was, and he eventually stated that he would "take [them] to it." Id.

Chiszar went outside, and Deputy Page and Deputy Baer followed. Chiszar took them to a sink hole near the edge of his property, retrieved a video camera out of the hole, and gave the video camera toDeputy Baer. Deputy Baer confirmed that there was a videotape inside the camera and asked Chiszar whether he had used that camera and tape to videotape L.G. earlier that night, and Chiszar responded in the affirmative. Deputy Baer then took a recorded statement of L.G., who reported that Chiszar had battered her while she was struggling to get the video camera from him. Deputy Page then arrested Chiszar for battery.

Later that day, Tony Lantz with the White County Prosecutor's Office executed an affidavit seeking a search warrant to recover videotapes, video equipment, computers, modems, a laptop computer, and related equipment from Chiszar's residence. In his affidavit, Lantz stated

Earlier today police went to the Chiszar residence because his girlfriend, [L.G.] discovered him taping her, without her consent, while he was attempting to have sex with her. The police recovered the camera and 2 tapes. [L.G.] said she has seen what she believes to be child pornography on his computer. I am aware from a previous complaint that Chiszar was accused of videotaping his previous wife without her consent. [L.G.] told me she has a tape of Chiszar's whereby his previous girlfriend was videotaped at his residence having sexual intercourse with him and the tape was done without the previous girlfriend's consent. Both Chiszar and [L.G.] have teenage/preteen daughters and [L.G.] is concerned that the teenage girls may have been videotaped. [L.G.] and Chiszar have had an ongoing sexual relationship for approx. 2 years and additional videos of her and others may be located in the residence. I believe [L.G.] is truthful in that the information she provided is first-hand and she has no criminal history of crimes of dishonesty. During a prior investigation of voyeuristic activity I viewed videotapes taken by Chiszar peeping into windows of houses viewing women in various states of undress. Chiszar was taken into custody and remains in custody at this time.

Exhibit A. A magistrate issued the search warrant. When officers executed the warrant at Chiszar's house, they found another videotape and a computer, which contained images of child pornography on it. One videotape depicted L.G. naked, and another videotape depicted a second victim, L.B.¹

Under three separate causes, the State charged Chiszar with two counts of voyeurism, as Class D felonies; three counts of possession of child pornography, Class D felonies; possession of paraphernalia, as a Class A misdemeanor; possession of marijuana, as a Class A misdemeanor; and battery, as a Class A misdemeanor. The parties stipulated to consolidate all of the charges for a single bench trial. Chiszar moved to suppress evidence and moved to dismiss, but the trial court denied those motions. The trial court found Chiszar guilty as charged and sentenced him accordingly. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Vagueness Doctrine

Chiszar first contends that the voyeurism statute, Indiana Code Section 35-45-4-5, is unconstitutionally vague. That statute provides:

(a) A person:

(1) who:

(A) peeps; or

(B) goes upon the land of another with the intent to peep;

into an occupied dwelling of another

...