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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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