Christopher Allen v. State of Indiana (mem. dec.) ( 2019 )

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
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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.
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