Delagrange v. State
| Decision Date | 18 July 2011 |
| Docket Number | No. 49A02–1010–CR–1086.,49A02–1010–CR–1086. |
| Parties | David DELAGRANGE, Appellant–Defendant,v.STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
951 N.E.2d 593
David DELAGRANGE, Appellant–Defendant,
v.
STATE of Indiana, Appellee–Plaintiff.
No. 49A02–1010–CR–1086.
Court of Appeals of Indiana.
July 18, 2011.
[951 N.E.2d 593]
Bryan Lee Ciyou, Vernon E. Lorenz, Indianapolis, IN, Attorneys for Appellant.Gregory F. Zoeller, Attorney General of Indiana, Ann L. Goodwin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
[951 N.E.2d 594]
OPINION
Defendant–Appellant David Delagrange appeals the partial denial of his motion to dismiss. We affirm and remand.
Delagrange raises one issue, which we restate as: whether the trial court abused its discretion by denying in part Delagrange's motion to dismiss.
The parties stipulated to the following facts. On February 27, 2010, Delagrange went to a mall in Indianapolis. He had attached a camera to one of his shoes. The camera was connected to a digital recording device that stored the camera's images. In addition, Delagrange had attached a fishing line to the inside of his front pants pocket and the cuff of one leg of his pants. Delagrange used the fishing line to pull up his pants leg and expose the camera to take pictures.
At the mall, Delagrange approached several young women who were working or shopping in various stores. Three of the young women were seventeen years of age, and one was fifteen. All four of them were wearing skirts or dresses. Delagrange attempted to surreptitiously place his foot between their legs to take pictures under their skirts or dresses. After several of these encounters, Delagrange was arrested at the mall for resisting law enforcement. A review of his camera recordings revealed photographs of areas under some of the young women's skirts and dresses.
The State charged Delagrange with four counts of attempted child exploitation, all Class C felonies, Indiana Code sections 35–41–5–1 (1977) and 35–42–4–4(b) (2007); ten counts of voyeurism, all Class D felonies, Indiana Code section 35–45–4–5 (2005); and resisting law enforcement, a Class A misdemeanor, Indiana Code section 35–44–3–3 (2006).1 Delagrange filed a motion to dismiss the voyeurism and attempted child exploitation charges. The trial court held a hearing on the motion, and the parties submitted a joint stipulation of facts. The trial court dismissed the voyeurism charges but declined to dismiss the four counts of attempted child exploitation. Subsequently, Delagrange sought and obtained permission from the trial court and this Court to pursue this interlocutory appeal of the trial court's decision.
Indiana Code section 35–34–1–4(a) (1983) provides, in relevant part, “[t]he court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds ... [t]he facts stated do not constitute an offense.” We review a trial court's denial of a motion to dismiss for an abuse of discretion. Ingram v. State, 760 N.E.2d 615, 618 (Ind.Ct.App.2001), trans. denied. In reviewing a trial court's decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id.
As a general rule, when a defendant files a motion to dismiss an information, the facts alleged in the information are to be taken as true. State v. Bilbrey, 743 N.E.2d 796, 798 (Ind.Ct.App.2001). Questions of fact to be decided at trial or facts constituting a defense are not properly
[951 N.E.2d 595]
raised by a motion to dismiss. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind.Ct.App.2003). A hearing on a motion to dismiss is not a trial of the defendant on the offense charged. See id. (noting that the facts permitted to be raised in a motion to dismiss “typically concern only pre-trial matters”).
Delagrange asserts that the facts, as pleaded in the charging information, do not constitute crimes of attempted child exploitation. In the information, all four counts of attempted child exploitation are almost identical, differing only in the age and identity of the alleged victims. For each count, the State alleges that Delagrange “engage[ed] in conduct that constituted a substantial step towards” the offense of “knowingly or intentionally produc[ing] and/or creat[ing] and/or film[ing] and/or videotap [ing] and/or [creating a] digitized image of a performance or incident that includes sexual conduct by a child...
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