ILNews

Judges disagree over 'access' in statute

Jennifer Nelson
January 1, 2008
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Indiana Court of Appeals judges were split in their ruling today on a man who was convicted of performance harmful to minors, with the majority affirming the conviction.

In Frederick A. Zitlaw v. State of Indiana, No. 29A05-0701-CR-35, Zitlaw appealed the trial court's denial of his motion to dismiss the performance harmful to minors charge, a Class D felony. A Hamilton County sheriff's deputy saw Zitlaw expose himself in a public park. The probable cause affidavit alleged children were present in the park.

Zitlaw wanted the charge dismissed because the charging information omitted a statutory exception; the charging information didn't include the names of any of the alleged children who witnessed the indecent exposure; no minors actually heard or saw Zitlaw's actions; and the performance harmful to minors statute is unconstitutionally vague.

Judges John Sharpnack and Ezra Friedlander affirmed the trial court denial of Zitlaw's motion, ruling that interpretation of Indiana Code Section 35-49-3-3 clearly shows Zitlaw was in violation of the statute. Even though there were no minors present when he exposed himself, part of statute includes minors having "visual, auditory, or physical access." The majority of judges concluded that minors don't have to be present but only need the ability to see or hear the conduct.

However, in her dissent, Judge Patricia Riley disagreed with the majority's interpretation of "an area to which minors have visual, auditory, or physical access" because she interpreted the language of the statute to require the actual presence of minors that can see, hear, or feel the performance of the act. In fact, a "performance" of an indecent act is required under the statute, and Judge Riley concluded based on Indiana Code Article 49, that a performance requires an audience of one or more people. So, if no children were present during Zitlaw's indecent act, then no performance took place and he did not violate I.C. Section 35-49-3-3.

In her dissent, Judge Riley wrote she would reverse the trial court's decision and remand for further proceedings on the other charges against Zitlaw.
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  1. A sad end to a prolific gadfly. Indiana has suffered a great loss in the journalistic realm.

  2. Good riddance to this dangerous activist judge

  3. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  4. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  5. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

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