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Dobeski v. State

Court of Appeals of Indiana

December 12, 2016

Richard Dobeski, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Marion Superior Court The Honorable Helen W. Marchal, Judge. Trial Court Cause No. 49G15-1507-F6-26077

          Attorney for Appellant Valerie K. Boots Indianapolis, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

          Altice, Judge.

         Case Summary

         [¶1] Richard Dobeski appeals following his conviction for failure to register as a sex offender. Under the terms of the applicable statute, Dobeski was required to register "not more than seven (7) days after" his release from prison. Ind. Code § 11-8-8-7(g). On appeal, Dobeski argues that the State presented insufficient evidence to support his conviction because seven days had not yet elapsed at the time he was arrested.

         [¶2] We reverse and remand with instructions to vacate Dobeski's conviction.[1]

         Facts & Procedural History

         [¶3] In 2008, Dobeski was convicted of class C felony child molesting and class D felony possession of child pornography. He was sentenced to an aggregate term of eleven years. Pursuant to Indiana law, Dobeski was required to register as a sex offender upon his release from custody.

         [¶4] Dobeski was released from New Castle Correctional Facility on July 16, 2015. A "Transportation Detail" form introduced into evidence at trial indicates that a transport van carrying Dobeski and seven other inmates left the prison at 9:30 a.m. Exhibit Volume, State's Ex. 5. The form indicates that the van both arrived in and departed from "Indy" at 11:15 a.m., but nevertheless managed to drop off seven inmates while there. Id. The van then travelled to Portland, Indiana, where it dropped off its last passenger at 1:30 p.m. before arriving back at the prison at 2:30 p.m. The form does not indicate which inmates were dropped off at which location. No evidence was presented concerning what further processing, if any, the inmates underwent at their destination before they were free to go.

         [¶5] A sergeant with the Marion County Sheriff's Office checked the sex offender database "sometime after 1:00 in the afternoon" on July 23, 2015, and found that Dobeski had not yet registered. Transcript at 10. At some point between 2:00 and 2:30 p.m. that same day, a sheriff's deputy located Dobeski at the Indianapolis Public Library and placed him under arrest for failure to register as a sex offender.

         [¶6] At trial, the State argued that seven days had elapsed between Dobeski's release and his arrest. Specifically, the State argued that the evidence showed that Dobeski was released at 11:15 a.m. on July 16, 2015, and arrested between 2:00 and 2:30 p.m. on July 23, 2015. According to the State, the "days" referred to in the statute were twenty-four-hour periods, beginning with the moment Dobeski was released from prison. In other words, Dobeski had precisely 168 hours to register. Thus, the State argued Dobeski was in violation of the statute when he failed to register by 11:15 a.m. on July 23, 2015. Dobeski, on the other hand, argued that the statute gave him seven full calendar days to register, and that he therefore had until midnight on July 23, 2015 to do so. Consequently, Dobeski argued, his arrest was premature. The trial court ultimately accepted the State's argument. Dobeski now appeals.

         Discussion & Decision

         [¶7] In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601, 609 (Ind.Ct.App. 2009). Instead, we consider only the evidence supporting the conviction and the reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime ...


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