Indiana High Court Affirms Conviction for "Upskirt" Photos

Indiana case law summary by Attorney Richard Clem: Criminal law, attempt crime, upskirt photos.

David S. Delagrange v. State of Indiana. Criminal law, attempt crime, upskirt photos.

On February 27, 2010, David S. Delagrange drove from his home in Fort Wayne to the Castleton Square Mall in Indianapolis, where he wandered around for eight hours taking "upskirt" photos of women and girls at the mall. He had a video camera attached to his shoe and a piece of fish line tied to the cuff of his pants leg. He would try to get his foot betwen the victim's legs, and then pull on the fishing line to expose the camera. He collected about seven minutes of images during his day at the mall.

An alert store employee noticed Delagrange's strange behavior, and called police. They subsequently arrested him and found his camera. Detectives later identified four girls under the age of 18 in the pictures. The pictures showed the area under the skirt, but did not depict any uncovered genitals.

He was charged with attempted child exploitation in Marion Superior Court. After a trial before Judge Sheila A. Carlisle and a jury, he was convicted. Delagrange appealed to the Indiana Court of Appeals, which reversed in a divided opinion. Delagrange v. State, 981 N.E.2d 1227 (Ind. Ct. App. 2013). According to the Court of Appeals, since none of the pictures depicted the victim's uncovered genitals, the charges could not stand. The Indiana Supreme Court granted transfer of the case, and on March 18, 2014, reversed the Court of Appeals decision and affirmed the conviction.

The Supreme Court noted that Delagrange's argument might have some merit had be been charged with child exploitation. But that was not the charge in the case. He was charged with attempted child exploitation. And to be guilty of attempt, the defendant must engage in conduct which is a substantial step toward the commission of a crime.

In other words, it was not necessary for the conviction for Delagrange to have succeeded in capturing images of uncovered genitals. It was sufficient that he took a substantial step toward doing so. And the Court examined the evidence and concluded that the jury correctly concluded that he had. The court asked, "can a jury infer that someone taking 'upskirt' photographs of women and girls by means of a concealed shoe camera does so in the hope that some of them will not be wearing undergarments? We say yes."

Delgagrange's attorney had referred at trial to the famous photograph of Marilyn Monroe standing over an air vent. The Court remarked that this analogy was unpersuasive because of the difference "between a photograph of a knowing and consenting adult and a video of an unknowing and unconsenting child. The former is legal; the latter is not."

No. 49S04-1304-CR-249 (Ind. Mar. 18, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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