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. Employers should not have racially discriminating mind set. It has huge impact on the society what the big players do or don't do in the industry. Background check is conducted just to verify whether information provided by the prospective employee is correct or not. It doesn't have any direct combination with the rejection of the employees. If there is rejection, there should be something effective and full-proof things on the table that may keep the company or the people associated with it in jeopardy.

  2. Unlike the federal judge who refused to protect me, the Virginia State Bar gave me a hearing. After the hearing, the Virginia State Bar refused to discipline me. VSB said that attacking me with the court ADA coordinator had, " all the grace and charm of a drive-by shooting." One does wonder why the VSB was able to have a hearing and come to that conclusion, but the federal judge in Indiana slammed the door of the courthouse in my face.

  3. I agree. My husband has almost the exact same situation. Age states and all.

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  5. Andrew, if what you report is true, then it certainly is newsworthy. If what you report is false, then it certainly is newsworthy. Any journalists reading along??? And that same Coordinator blew me up real good as well, even destroying evidence to get the ordered wetwork done. There is a story here, if any have the moxie to go for it. Search ADA here for just some of my experiences with the court's junk yard dog. https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert Yep, drive by shootings. The lawyers of the Old Dominion got that right. Career executions lacking any real semblance of due process. It is the ISC way ... under the bad shepard's leadership ... and a compliant, silent, boot-licking fifth estate.

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