      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
