Walters v. State, 67S01-8607-CR-711
Decision Date | 31 July 1986 |
Docket Number | No. 67S01-8607-CR-711,67S01-8607-CR-711 |
Citation | 495 N.E.2d 734 |
Parties | Glen Edwin WALTERS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
Court | Indiana Supreme Court |
Susan K. Carpenter, Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for appellant.
Linley E. Pearson, Atty. Gen., Richard Albert Alford, Deputy Atty. Gen., Indianapolis, for appellee.
ON CRIMINAL PETITION TO TRANSFER
Defendant Glen Edwin Walters was convicted by a jury of five crimes: 1) child molesting, class C felony 1, 2) child molesting, class C felony 2, 3) child molesting, class D felony 3, 4) dissemination of matter harmful to minors, class A misdemeanor 4, 5) exhibition of obscene matter, class A misdemeanor 5. His conviction was affirmed in a memorandum decision of the Court of Appeals (First District). 485 N.E.2d 160. Defendant now petitions for transfer on the grounds that the Court of Appeals erroneously failed to address defendant's issue concerning sufficiency of the evidence as to the convictions for exhibiting obscene matter and displaying matter harmful to minors.
These offenses were charged as Counts 1 and 2, with each alleging the offense was committed on or about November 11, 1983. The State placed into evidence three of nine films which had been seized at the defendant's home. The jury viewed the contents of only one of these films. The victim testified that he had seen this film in the defendant's home, and that the two other films admitted in evidence were "about the same" as the one viewed by the jury. The victim testified that he saw two films during each of his nine visits to the defendant's apartment, that he had seen all nine films, and that all of the films were similar in content.
Defendant's sufficiency argument is based upon his contention that there was no evidence proving that the specific film shown to the jury was the same film which was exhibited to the victim on the date alleged in the informations. The victim did not specify when he saw this film, and the precise date cannot be inferred from the context of his testimony.
Defendant's contention erroneously focuses upon the specific date of the charging informations. To the contrary, the following general rule is applicable:
The law is well settled in Indiana that where time is not of the essence of the offense, the State is not confined to proving the commission on the date alleged in the affidavit or indictment, but may prove the commission at any time within the statutory period of limitations.
Stallings v. State (1953), 232 Ind. 646, 114 N.E.2d 771. See also, Catenacci v. State (1982), Ind., 436 N.E.2d 1134; Quillen v. State (1979), 271 Ind. 251, 391 N.E.2d 817.
Thus, the question is whether the film viewed by the jury as exhibited and displayed to the minor victim at any time within the statutory period of limitations. From the victim's testimony, it is clear that his visits to defendant's apartment occurred at various times during 1983, the year in which the charges were brought against the defendant. It is therefore clear that the evidence was sufficient to prove that the film fully viewed by the jury was shown to the minor victim within the year 1983, and that the criminal offenses were thus committed within the statutory period of limitations.
Defendant's Petition to Transfer does not question the memorandum decision of the Court of Appeals as to the other issues decided therein. We therefore now adopt and incorporate the following portions of that decision:
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