MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jun 19 2019, 10:31 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




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



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ladell Davis,                                            June 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2876
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Bradley Keffer,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49G12-1805-CM-14588



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2876 | June 19, 2019                   Page 1 of 4
                                                 Case Summary
[1]   On October 16, 2018, Ladell Davis was convicted of Class B misdemeanor

      disorderly conduct. Davis contends that the State produced insufficient

      evidence to sustain his conviction by failing to prove that his conviction

      occurred within the statute of limitations. Because we agree with Davis’s

      contention and find it dispositive, we need not address his other contentions.

      We reverse.


                                 Facts and Procedural History
[2]   On May 5, 2018, the State charged Davis with two counts of Class A

      misdemeanor battery resulting in bodily injury and one count of Class B

      misdemeanor disorderly conduct. The disorderly conduct charge alleged that

      “[o]n or about May 5, 2018, LADELL DAVIS, did recklessly, knowingly, or

      intentionally make an unreasonable noise; and continued to do so after being

      asked to stop[.]” Appellant’s App. Vol. II p. 14. The State, however, produced

      no evidence during the October 16, 2018 bench trial to show the date on which

      Davis committed the offense.1 The trial court found Davis guilty of disorderly

      conduct and sentenced him to ten days of incarceration and 365 days on

      probation.




      1
          The State dismissed both counts of battery resulting in bodily injury prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2876 | June 19, 2019               Page 2 of 4
                                 Discussion and Decision
[3]   Davis contends that the State produced insufficient evidence to sustain his

      conviction by failing to prove that the offense occurred within the statute of

      limitations. When reviewing the sufficiency of evidence to support a conviction,

      this court considers only probative evidence and reasonable inferences

      supporting the factfinder’s decision. Young v. State, 973 N.E.2d 1225, 1226 (Ind.

      Ct. App. 2012). This court will affirm a conviction unless “no reasonable fact-

      finder could find the elements of the crime proven beyond a reasonable doubt.”

      Id. The Indiana Supreme Court has concluded that “[i]t is a necessary burden of

      the State to establish that the crime charged was committed within the statute of

      limitations.” Fisher v. State, 291 N.E.2d 76, 82 (Ind. 1973). The statutory

      limitation period for the prosecution of a misdemeanor offense in Indiana is

      two years. Ind. Code § 35-41-4-2(a)(2).

[4]   The State failed to prove that Davis committed disorderly conduct within the

      statute of limitations. While the charging information alleged that Davis

      committed the offense on May 5, 2018, at no point during trial did the State

      present any evidence showing the date on which the alleged offense occurred.

      By failing to do so, the State failed to establish that Davis committed the

      misdemeanor offense within the two-year statute of limitations.

[5]   The State argues that Davis has waived his contention for appellate review by

      failing to raise it during trial. We have held, however, that a defendant does not

      waive a statute of limitations defense by failing to raise it at trial. See Jewell v.

      State, 877 N.E.2d 864, 868–69 (Ind. Ct. App. 2007) (“[W]e have held that even

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2876 | June 19, 2019   Page 3 of 4
      though a defendant does not raise a statute of limitations defense at trial, a

      violation of the statutory limitations period constitutes fundamental error and

      cannot be waived.”), aff’d in part and vacated in part on other grounds in Jewell v.

      State, 887 N.E.2d 939 (Ind. 2008).

[6]   The judgment of the trial court is reversed.

      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2876 | June 19, 2019   Page 4 of 4
