Christopher Allen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 6, 2019
• Docket: 19A-CR-1310
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Nov 06 2019, 10:44 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Christopher Allen, November 6, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1310 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Appellee-Plaintiff Christina Klineman, Judge Trial Court Cause No. 49G17-1801-F6-1902

Vaidik, Chief Judge.

[1] On January 17, 2018, the State charged Christopher Allen with Level 6 felony

criminal confinement, Class A misdemeanor domestic battery, and Class A

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1310 | November 6, 2019 Page 1 of 3 misdemeanor battery resulting in bodily injury, alleging that he had attacked

B.S. “[o]n or about January 14, 2018[.]” Appellant’s App. Vol. II p. 17. At a

bench trial in May 2019, evidence was presented that Allen attacked B.S. on

“January 14th,” Tr. pp. 6, 22, but the year was never specified. The trial court

found Allen guilty of domestic battery and sentenced him accordingly.

[2] Allen appeals, relying on holdings by our Supreme Court that the State is

required to prove that the crime charged was committed within the applicable

statutory limitation period (two years for misdemeanors, see Ind. Code § 35-41-

4-2(a)(2)). See, e.g., Fisher v. State, 259 Ind. 633, 645, 291 N.E.2d 76, 82 (1973);

Dickinson v. State, 70 Ind. 247, 251-52 (1880). Allen contends that the State

failed to do so in this case. The State argues that (1) it presented sufficient

evidence to establish that the offense occurred in 2018 and (2) even if it did not,

Allen waived the issue by not raising it in the trial court.

[3] The State is clearly wrong on the first point. The State points out that the

charging information alleged that the crime occurred on January 14, 2018, but

the evidence actually presented at trial did not establish a year, only a day

(“January 14th”).

[4] The State’s second argument also fails. The State acknowledges that our

Supreme Court has allowed a statute-of-limitations defense to be raised for the

first time on appeal, see Wallace v. State, 753 N.E.2d 568 (Ind. 2001), but argues

that Justice Boehm’s dissent in that case should be the law in Indiana. That, of

course, is a matter for our Supreme Court to consider. In its brief (filed on

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1310 | November 6, 2019 Page 2 of 3 September 30), the State noted that a petition to transfer was pending in a case

where this Court had reversed a conviction based on the State’s failure to

establish the date of the crime, even though the defendant did not raise the issue

in the trial court. A few days after the State filed its brief in this case, however,

the Supreme Court denied that petition. Order, Case No. 18A-CR-2876 (Oct. 3,

2019).

[5] In light of the above precedent from our Supreme Court, we must reverse

Allen’s conviction.

[6] Reversed.

Riley, J., and Bradford, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1310 | November 6, 2019 Page 3 of 3