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. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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