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. He did not have an "unlicensed handgun" in his pocket. Firearms are not licensed in Indiana. He apparently possessed a handgun without a license to carry, but it's not the handgun that is licensed (or registered).

  2. Once again, Indiana's legislature proves how friendly it is to monopolies. This latest bill by Hershman demonstrates the lengths Indiana's representatives are willing to go to put big business's (especially utilities') interests above those of everyday working people. Maassal argues that if the technology (solar) is so good, it will be able to compete on its own. Too bad he doesn't feel the same way about the industries he represents. Instead, he wants to cut the small credit consumers get for using solar in order to "add a 'level of certainty'" to his industry. I haven't heard of or seen such a blatant money-grab by an industry since the days when our federal, state, and local governments were run by the railroad. Senator Hershman's constituents should remember this bill the next time he runs for office, and they should penalize him accordingly.

  3. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  4. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  5. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

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