                                                          FILED
                                                       Nov 16 2012, 9:28 am

FOR PUBLICATION                                               CLERK
                                                            of the supreme court,
                                                            court of appeals and
                                                                   tax court




ATTORNEYS FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

CRAIG V. BRAJE                                GREGORY F. ZOELLER
Michigan City, Indiana                        Attorney General of Indiana

ELIZABETH A. FLYNN                            IAN McLEAN
Michigan City, Indiana                        Deputy Attorney General
                                              Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

MARYBETH LEBO,                                )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )    No. 46A05-1202-CR-104
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE LaPORTE SUPERIOR COURT
                         The Honorable Jennifer L. Koethe, Judge
                            Cause No. 46D03-1109-CM-942




                                   November 16, 2012


                              OPINION - FOR PUBLICATION


BRADFORD, Judge
       Having convicted former LaPorte High School junior varsity volleyball coach Robert

Ashcraft of multiple sex crimes against a minor student athlete, the State of Indiana charged

Marybeth Lebo, the school’s varsity volleyball coach, with failure to report child abuse or

neglect. Lebo appeals the trial court’s denial of her motion to dismiss these charges, arguing

they are barred by the statute of limitations and lack sufficient specificity. We conclude that

failure to report is a continuing offense to which the statute of limitations does not apply and,

alternatively, that Lebo’s alleged instruction that her volleyball players not discuss Ashcraft’s

conduct with their parents was sufficient to invoke the concealment exception to the statute

of limitations. We also conclude that the charging informations, together with testimony

from the probable cause hearing, allege sufficiently specific facts from which Lebo can

prepare her defense. Therefore, we affirm.

                        FACTS AND PROCEDURAL HISTORY

       At all times in question, Lebo was employed as the varsity volleyball coach at LaPorte

High School. In this capacity, Lebo supervised Robert Ashcraft, who was employed as the

school’s junior varsity volleyball coach. K.T., a minor student, began playing volleyball at

LaPorte High School on or about August 1, 2007. At that time, K.T. was fifteen years of age,

turning sixteen on June 21, 2008.

       Ashcraft resigned from his employment with the LaPorte Community School

Corporation on October 28, 2008. Around November 21, 2008, the LaPorte City Police

Department began investigating allegations of a sexual relationship between Ashcraft and

K.T. On December 17, 2009, Ashcraft was arrested and charged with felony sexual


                                               2
misconduct with a minor and felony child seduction. In January of 2010, the Indiana State

Police (“ISP”) began investigating whether the administration and staff of the LaPorte

Community School Corporation, including Lebo, were aware of the relationship between

Ashcraft and K.T. and failed to report it to an appropriate authority. The investigation

entailed reviewing materials from Ashcraft’s criminal case and over 100,000 emails from the

LaPorte Community School Corporation, as well as conducting additional interviews with

student volleyball players and their parents. The ISP submitted its completed investigation

report to the LaPorte County Prosecutor’s Office on October 23, 2010.

       In July of 2011, a jury convicted Ashcraft of multiple counts of felony sexual

misconduct with a minor and felony child seduction. A probable cause hearing regarding

potential charges against Lebo was held on September 6, 2011. At the hearing, ISP Detective

Michael Robinson testified that the investigation into Lebo revealed that several different

parents talked to Lebo about Ashcraft’s inappropriate conduct with K.T., describing their

relationship as being “almost like they were boyfriend and girlfriend.” Appellant’s App. p.

64. Detective Robinson added that “[Lebo] received several reports, all regarding … Coach

Ashcraft, who was forty-two, forty-three years of age, and this player who was fifteen,

sixteen years of age during the course of this time period….” Appellant’s App. p. 60. “And

at numerous times it wasn’t just the coach and some other player or the coach and this other

player, it kept coming back to the same player….” Appellant’s App. p. 60. “It specifically

even mentioned in [Ashcraft’s] personnel file a couple of times, [K.T.’s] name.” Appellant’s

App. p. 60.


                                             3
       According to Detective Robinson’s testimony, the investigation also revealed that

Lebo “documented in Mr. Ashcraft’s personnel file [that Lebo] witnessed a couple of

instances” of “inappropriate contact” between Ashcraft and K.T. Appellant’s App. p. 59.

Specifically, at a volleyball tournament in Crown Point, Lebo observed that “Ashcraft was

leaning up against between the legs of the victim [while] watching a movie or something. In

her words, [Lebo] was very uncomfortable with that [and] made the girls get up right away

and start doing something else.” Appellant’s App. p. 59. Another instance occurred during a

bus ride; Lebo noticed that “Ashcraft had put his arm around [K.T.] and was like sharing

some food, yogurt, holding the cup for her, just stuff that made [Lebo] feel it was very

inappropriate.” Appellants’ App. p. 59. Lebo further documented that “she was in fear of

losing her job because of this … Ashcraft and [K.T.] situation.” Appellant’s App. pp. 59-60.

       Detective Robinson also testified that the investigation found no indication that Lebo

reported Ashcraft’s conduct to any authority at LaPorte High School, the Laporte Community

School Corporation, the local or state police department, or the Department of Child

Services. Lebo did, however, instruct her student volleyball players “not to tell anybody

what was going on. [D]on’t tell your parents. Don’t tell anybody.” Appellant’s App. p. 64.

Lebo also helped prepare Ashcraft’s resignation letter, which does not reference Lebo’s notes

in Ashcraft’s personnel file regarding his inappropriate conduct with K.T. The letter states

only that there was “some type of coaching problem.” Appellant’s App. p. 63.

       On September 6, 2011, the State charged Lebo with two counts of failure to report

child abuse or neglect, both Class B misdemeanors. Count I alleged a violation of Indiana


                                             4
Code section 31-33-5-1 as follows:

               Detective Michael Robinson being duly sworn upon his oath says that:
       in the County of LaPorte, State of Indiana, on or between August 1, 2007 and
       October 28, 2008, Marybeth Lebo had reason to believe that minor child K.T.
       was a victim of child abuse or neglect and failed to report such child abuse or
       neglect to law enforcement or the department of child services and such
       offense was concealed by the failure to make such report for the duration of
       the charges and by instructing her players during the 2007 and 2008 season not
       to discuss team matters or rumors with anyone, and further that the State did
       not have evidence sufficient to file charges until an investigative report was
       received after October 22, 2010, and could not have discovered sufficient
       evidence through due diligence.

Appellant’s App. p. 11. Count II alleged a violation of Indiana Code section 31-33-5-2 as

follows:

               Detective Michael Robinson being duly sworn upon his oath says that:
       in the county of LaPorte, state of Indiana, on or between August 1, 2007 and
       October 28, 2008, Marybeth Lebo while employed as a teacher and a coach for
       LaPorte High School had reason to believe that minor child K.T. was a victim
       of child abuse or neglect and failed to report such child abuse or neglect to the
       individual in charge of the school or the individual’s designated agent and such
       offense was concealed by the failure to make such report for the duration of
       the charges and by instructing her players during the 2007 and 2008 season not
       to discuss team matters or rumors with anyone, and further that the State did
       not have evidence sufficient to file charges until an investigative report was
       received after October 22, 2010, and could not have discovered sufficient
       evidence through due diligence.

Appellant’s App. p. 13.

       On September 29, 2011, Lebo filed a written motion to dismiss the charges against

her, alleging that the charging informations were filed beyond the statute of limitations. At a

hearing on this motion, Lebo orally claimed that the informations should also be dismissed

because the facts stated did not constitute an offense and because the offenses were not

alleged with sufficient specificity. On February 7, 2012, the trial court denied Lebo’s motion

                                              5
on all asserted grounds. This court granted Lebo’s motion for interlocutory appeal on April

13, 2012.

                              DISCUSSION AND DECISION

       “We review a trial court’s denial of a motion to dismiss for an abuse of discretion.”

Delagrange v. State, 951 N.E.2d 593, 594 (Ind. Ct. App. 2011), trans. denied. This means

“we [will] reverse only where the decision is clearly against the logic and effect of the facts

and circumstances.” Id. “As a general rule, when a defendant files a motion to dismiss an

information, the facts alleged in the information are to be taken as true.” Id. “Questions of

fact to be decided at trial or facts constituting a defense are not properly raised by a motion to

dismiss.” Id. at 594-95.

       “[W]here a charging instrument … lack[s] appropriate factual detail, additional

materials such as the probable cause affidavit supporting the charging instrument may be

taken into account in assessing whether a defendant has been apprised of the charges against

him.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied (citing

Patterson v. State, 495 N.E.2d 714, 719 (Ind. 1986)). Here, the trial court relied on the

testimony given at the probable cause hearing in denying Lebo’s motion. See Ind. Code §

35-33-7-2 (“In lieu of the affidavit … the facts may be submitted orally under oath to the

judicial officer.”).

            I. Whether the Charges Are Barred by the Statute of Limitations

       Lebo argues that the trial court abused its discretion in denying Lebo’s motion to

dismiss because the State’s charges are barred by the statute of limitations. Indiana Code


                                                6
section 35-41-4-2(a)(2) requires the State to commence prosecution of a misdemeanor

offense within two years after its commission. “[This] protect[s] defendants from the

prejudice that a delay in prosecution could bring, such as fading memories and stale

evidence.” Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011) (citing Kifer v. State, 740 N.E.2d

586, 587 (Ind. Ct. App. 2000)). “[It] also “strike[s] a balance between an individual’s

interest in repose and the State’s interest in having sufficient time to investigate and build its

case.” Id. (quoting Heitman v. State, 627 N.E.2d 1307, 1309 (Ind. Ct. App. 1994)). “‘[A]n

information alleging a time outside the statute of limitations which does not allege facts

sufficient to constitute an exception to the statute is subject to a motion to dismiss.’” Reeves

v. State, 938 N.E.2d 10, 16 (Ind. Ct. App. 2010), trans. denied (quoting Greichunos v. State,

457 N.E.2d 615, 617 (Ind. Ct. App. 1983)).

       Lebo claims that, because she is charged with failing to report child abuse or neglect

between August 1, 2007, and October 28, 2008, the two-year statute of limitations expired no

later than October 28, 2010, well before the State filed its charging informations on

September 6, 2011. The State claims that its charges were timely filed because the statute of

limitations was tolled by virtue of concealment and, alternatively, because the crime of

failure to report is a continuing offense.

                   A. Whether the Statute of Limitations Was Tolled

       “Indiana Code section 35–41–4–2(h)(2) … tolls a statute of limitations if ‘the accused

person conceals evidence of the offense, and evidence sufficient to charge the person with

that offense is unknown to the prosecuting authority and could not have been discovered by


                                                7
that authority by exercise of due diligence[.]’” Sloan, 947 N.E.2d at 92. “[W]hen the State

relies on this exception, it must plead the circumstances of the concealment exception in the

information so that the ‘defendant is apprised of the facts upon which the State intends to rely

and may be prepared to meet that proof at trial.’” Reeves, 938 N.E.2d at 17 (quoting Willner

v. State 602 N.E.2d 507, 509 (Ind. 1992)).

       In its charging informations, the State alleges that Lebo’s offenses were “concealed by

… [Lebo] instructing her players during the 2007 and 2008 seasons not to discuss team

matters or rumors with anyone.” Appellant’s App. pp. 11, 13. The State further alleges that

it “did not have evidence sufficient to file charges until an investigative report was received

after October 22, 2010, and [it] could not have discovered sufficient evidence through due

diligence.” Appellant’s App. pp. 11, 13. Lebo contends that these allegations are not

sufficiently specific to allow Lebo to prepare a concealment defense. We, however, agree

with the trial court; the allegations of concealment are sufficient to bring the charging

informations into compliance with the statute of limitations.

       The charging informations explicitly allege that Lebo concealed her failure to report,

include facts constituting the act of concealment upon which that allegation is based, and

provide a general timeframe in which the alleged concealment occurred. Further, these

allegations are supported by Detective Robinson’s testimony at the probable cause hearing.

In addition to testifying that Lebo instructed her players not to discuss the Ascraft and K.T.

situation with others, Detective Robinson testified that the ISP did not begin to suspect

Lebo’s failure to report until January 2010, the month after Ashcraft’s arrest. Moreover,


                                               8
Detective Robinson testified that the LaPorte County Prosecutor’s Office could not have

discovered sufficient evidence to charge Lebo with failure to report until it received the ISP’s

investigation report on October 23, 2010. The trial court did not abuse its discretion in

determining that concealment tolled the statute of limitations.

         Lebo also contends that the facts alleged in the charging informations do not

constitute concealment and that the State failed to exercise the due diligence necessary to

invoke the concealment exception to toll the statute of limitations. On this issue, we again

agree with the trial court. “‘Concealment is a fact-intensive issue.’” Appellant’s App. p. 7

(quoting Reeves, 938 N.E.2d at 17). See Willner, 602 N.E.2d at 509. Because questions of

fact are not properly raised on a motion to dismiss, Delagrange, 951 N.E.2d at 594-95, we

cannot conclude that the trial court abused its discretion in denying Lebo’s motion on this

basis.

                      B. Whether Failure to Report Is a Continuing Offense

         As an alternative, the State argues that the crime of failure to report is a continuing

offense, and therefore, the statute of limitations did not begin to run until the LaPorte County

Prosecutor’s Office received the ISP’s investigation report on October 23, 2010. The

doctrine of continuing offenses holds, “Where there is a continuing duty to do some act, the

statute of limitations does not apply where some portion of the offense is within the period of

limitations.” DeHart v. State, 471 N.E.2d 312, 315 (Ind. Ct. App. 1984). In other words,

“The offense continues as long as the duty persists[] and there is a failure to perform that

duty.” Wright v. Superior Court, 15 Cal. 4th 521, 525 (1997). An offense should not be


                                                9
deemed continuing “unless the explicit language of the substantive criminal statute compels

such a conclusion, or the nature of the crime involved is such that [the legislature] must

assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397

U.S. 112, 115 (1970).

       We conclude that Indiana’s failure to report child abuse or neglect statute

contemplates the crime as a continuing offense. Although the statute does not utilize the

terms “continuing” or “continuous,” it includes the following provision to that effect: “This

chapter does not relieve an individual of the obligation to report on the individual’s own

behalf, unless a report has already been made to the best of the individual’s belief.” Ind.

Code § 31-33-5-3. An individual who has not been “relieved” of his duty to report must be

considered to have a continuing duty to do so. To conclude otherwise effectively limits the

duty to report to the day on which a “reason to believe” arises. Such a conclusion would

frustrate the statute’s asserted purpose to “provide protection for an abused or a neglected

child from further abuse or neglect.” Ind. Code § 31-33-1-1 (emphasis added). To permit an

individual with a duty to report to avoid prosecution for failure to report because that

individual’s failure was not discovered within 730 days does nothing to protect a child who

may still be the victim of abuse on day 731 or beyond.

       Lebo contends that, because that statute requires a person with a duty to report to

“immediately make an oral report….” Ind. Code § 31-33-5-4 (emphasis added), the offense

cannot be considered continuing. But although “the violation is complete at the first instance

the elements are met[, i]t is nevertheless not completed as long as the obligation remains


                                             10
unfulfilled. ‘The crime achieves no finality until such time.’” Wright, 15 Cal. 4th at 526

(quoting Cores, 356 U.S 405, 409 (1958)). Lebo’s contention merely recognizes one part of

this duality.

           II. Whether the Charging Informations Are Sufficiently Specific

       Lebo argues that the trial court abused its discretion in denying her motion to dismiss

because the charging informations failed to allege facts with sufficient specificity to apprise

Lebo of the charges against her. “The purpose of the charging information is to provide a

defendant with notice of the crime of which he is charged so that he is able to prepare a

defense.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied (citing

Ben–Yisrayl v. State, 939 N.E.2d 1111, 271 (Ind. 2000)). For this reason, Indiana Code

section 35-34-1-2(a)(4) requires that an indictment or information “allege the commission of

an offense by … setting forth the nature and elements of the offense charged in plain and

concise language without unnecessary repetition.” Ind. Code § 35-34-1-2 (a)(4). The

indictment or information also must contain “a plain, concise, and definite written statement

of the essential facts constituting the offense charged.” Ind. Code § 35-34-1-2 (d). “The

court may, upon motion of the defendant, dismiss the indictment or information … [if it]

does not state the offense with sufficient certainty.” Ind. Code § 35-34-1-4 (a)(4).

       Here, the trial court found that that “the charging information[s] together with the oral

testimony presented in the … probable cause hearing has sufficient facts and circumstances

to inform [Lebo] of the particular offenses for which she is charged in order to allow her to

prepare a defense.” Appellant’s App. pp. 9-10. We agree. The charging informations track


                                              11
the language of the statutes on which the charges are based and, in conjunction with

Detective Robinson’s probable cause testimony, inform Lebo of the identity of both the

victim and the perpetrator, the relative time frame in which Lebo allegedly had reason to

believe K.T. had been the victim of Ashcraft’s abuse or neglect, and the facts and

circumstances giving rise to that reason to believe.

       Specifically, the facts allege that Lebo observed Ashcraft “leaning up against between

the legs” of K.T. while watching a movie and having his arm around K.T. while sharing food

with her during a bus ride. Appellant’s App. p. 59. Although specific dates are not given,

Detective Robinson testified that Lebo documented these observations in Ashcraft’s

personnel file, where she also noted her personal discomfort with Ashcraft’s conduct.

Ashcraft’s personnel file is clearly identified as “evidence collected” in the ISP investigation

report, Appellant’s App. p. 46, and Lebo makes no argument that it will be inaccessible

during discovery. Lebo is also aware that Ashcraft was convicted of sexual misconduct with

a minor and child seduction. On these facts, we cannot say that the trial court abused its

discretion in denying Lebo’s motion to dismiss for lack of sufficient specificity.

       We add that Lebo’s claims in support of her sufficient specificity argument are

without merit. First, Lebo’s claim that her alleged observations do not give rise to a “reason

to believe” presents a question of fact to be resolved at trial and is not properly raised on a

motion to dismiss. Delagrange, 951 N.E.2d at 594-95. Second, Lebo’s claim that the time

frame alleged fails to identify whether K.T. was fifteen or sixteen at the time of Lebo’s

observations is misplaced. The failure to report statute does not require that an individual


                                              12
have actual knowledge of child abuse or neglect. Rather, a duty to report is imposed on an

individual who merely has “reason to believe” a child is the victim of such a crime. Ind.

Code §§ 31-33-5-1, 31-33-5-2 (2011). See Ind. Code § 31-33-1-1(1) (stating one of the

purposes of a duty to report is “to encourage effective reporting of suspected or known

incidents of child abuse or neglect” (emphasis added)). Therefore, the conduct allegedly

observed by Lebo need not satisfy the elements of sexual misconduct with a minor, Ind. Code

§ 35-42-4-9 (requiring a victim less than sixteen years of age), or those of child seduction,

Ind. Code § 35-42-4-7 (requiring a victim at least sixteen years of age).

       The judgment of the trial court is affirmed.

ROBB, C.J., concurs.

BAKER, J., concurs in part and dissents in part with opinion.




                                             13
                               IN THE
                    COURT OF APPEALS OF INDIANA

MARYBETH LEBO,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
              vs.                                   )      No. 46A05-1202-CR-104
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )




BAKER, Judge, concurring in part and dissenting in part.

       I agree with the majority’s determination that the statute of limitations had not run

with respect to the State’s ability to bring charges against Lebo. More particularly, I believe

that Lebo’s concealment, properly alleged in the charging informations, tolled the statute of

limitations as it applied to her such that the charges filed against her in September 2011 were

not time-barred. I part ways only briefly on this issue to note my belief that the tolling ceased

when the State had probable cause to arrest Ashcraft, because at this time the State could

have discovered through due diligence whether Lebo, in her role as K.T.’s coach and as

Ashcraft’s superior, had failed to make a report required under Indiana Code sections 31-33-

5-1 or 31-33-5-2. Under either interpretation of when the tolling stopped, however, the

charges against Lebo were brought within the two-year statute of limitations.

       Because by all accounts the statute of limitations had not run, I believe that it is


                                               14
unnecessary for this Court to reach whether our legislature contemplated or created the

offense of failure to report child abuse or neglect as a continuing offense. Nevertheless,

because the majority reaches this issue, I must note that I cannot agree with the majority’s

characterization of the failure to report child abuse or neglect as a continuing offense that

never invokes the statute of limitations.

       More than thirty years ago, our Supreme Court commented on the fundamental

fairness of having and enforcing statutes of limitations by saying:

       Formerly, statutes of limitations were looked upon with disfavor in that they
       are invariably in derogation of the common law. Now, however, the judicial
       attitude is in favor of statutes of limitations, rather than otherwise, since they
       are considered as statutes of repose and as affording security against stale
       claims. Consequently, except in the case of statutes of limitations against the
       government, the courts are inclined to construe limitation laws liberally, so as
       to effect the intention of the legislature.

Shideler v. Dwyer, 275 Ind. 270, 273, 417 N.E.2d 281, 284 (1981) (internal quotation marks

and citation omitted). As aptly highlighted by the majority, our Supreme Court recently

reiterated this rationale by stating that the purpose of a statute of limitations in a criminal

case is to “protect defendants from the prejudice that a delay in prosecution could bring, such

as fading memories and stale evidence.” Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011)

(citing Kifer v. State, 740 N.E.2d 586, 587 (Ind. Ct. App. 2000)). In my view, these concerns

remain ever-present where the alleged crime consists of a failure to act, as is the case here, as

opposed to a crime with an overt actus reus. Indeed, in such cases there may be even more of

a risk of fading memories and stale evidence.

       Furthermore, unlike the majority, I do not believe that our legislature has indicated a


                                               15
clear intent to make failure to report child abuse or neglect a continuing offense. The State

charged Lebo under Indiana Code section 31-33-22-1, which provides, “[a] person who

knowingly fails to make a report required by IC 31-33-5-1 commits a Class B misdemeanor,”

and “[a] person who knowingly fails to make a report required by IC 31-33-5-2 commits a

Class B misdemeanor.” Ind. Code § 31-33-22-1 (emphases added). Based on this language,

I believe that it is clear that the legislature intended for only one crime to result under each of

the failure to report statutes.1 See State v. Langdon, 159 Ind. 377, 377, 65 N.E. 1, 2 (1905)

(holding that the former crime of deserting one’s wife was “but one offense,” and explicitly

rejecting the idea that there was a new crime of desertion each day the husband remained

absent).

        Moreover, I do not believe that Indiana Code section 31-33-5-3 clearly expresses the

legislature’s intent to make failure to report child abuse or neglect a continuing offense by its

provision that an individual is not “relieved” of the duty to make a report unless that

individual believes a report has already been made. Indeed, the meaning of Indiana Code

section 31-33-5-3 becomes apparent when it is analyzed in the context of its surrounding

statutes. Indiana Code section 31-33-5-1, the statute that imposes the general duty to report

child abuse, provides that “an individual who has reason to believe that a child is a victim of

child abuse or neglect shall make a report as required by this article.” Such a report must be

made “immediately.” I.C. § 31-33-5-4. Indiana Code section 31-33-5-2 imposes an


1
 Although one crime can be committed under each of these statutes, Indiana Code section 31-33-22-1 makes
clear that a penalty for failing to comply with Indiana Code section 31-33-5-2 can be in addition to the penalty
imposed for a violation of Indiana Code section 31-33-5-1.

                                                      16
additional duty on individuals acquiring that “reason to believe” in certain professional

capacities to also “immediately” notify the person in charge of the individual’s employing

institution, who should then report the alleged abuse or neglect. In this context, it is clear

that Indiana Code section 31-33-5-3 operates, not to impose a continuing duty to report, but

to be clear that once the initial individual with the “reason to believe” notifies the person in

charge of the employing institution, that initial individual must still make a separate report to

the designated authorities if the person in charge would for any reason fail to make the

institution’s report as required by Indiana Code section 31-33-5-2.

       Finally, in my view, any intent of the legislature to make the failure to report child

abuse or neglect a continuing offense is at best ambiguous, and it “[i]t is well-established that

penal statutes must be strictly construed against the state.” Sunday v. State, 720 N.E.2d 716,

719 (Ind. 1999). When this principle is added to the fact that statutes of limitations are

favored in Indiana and the doctrine of continuing offense is meant to be an extremely limited

doctrine, I do not believe this Court can reasonably interpret the failure to report child abuse

or neglect as a continuing offense.

       I am sensitive to the fact that if someone fails to make a report, child abuse or neglect

could continue for every day that the report goes unmade. See slip op. at 10. However, we

must also be reminded that the person who has “reason to believe” that child abuse or neglect

has occurred and fails to report that abuse or neglect is not the person inflicting harm on the

child. Yet the statute of limitations does not fail to apply to those who commit heinous




                                               17
crimes against children.

        Notwithstanding my view that the statute of limitations was tolled by Lebo’s acts of

concealment, I believe that the trial court erred in denying Lebo’s motion to dismiss.

Neither the State’s charging information nor the evidence presented at the probable cause

hearing alleged facts that, even if taken as true, would suggest that Lebo had “reason to

believe” that K.T. was the victim of child abuse. “Reason to believe,” for the purposes of the

failure to report statute, has been defined by our legislature as “evidence that, if presented to

individuals of similar background and training, would cause the individuals to believe that a

child was abused or neglected.” Ind. Code § 31-9-2-101. There is no corresponding

statutory definition for “believe,” but this term is defined by Black’s Law Dictionary as “[t]o

feel certain about the truth of; to accept as true.” Black’s Law Dictionary (9th ed. 2009).

       Here, the facts demonstrated by the State to have been known by Lebo—that Ashcraft

had leaned on K.T.’s legs during a movie, that Ashcraft had his arm around K.T. and shared

yogurt with her during a bus trip, or that some parents had complained to Lebo that Ashcraft

and K.T. appeared “almost like they were boyfriend and girlfriend”—would not, in my view,

cause an individual of similar background and training as Lebo to “believe” that Ashcraft

was engaging in illegal sexual activity with K.T. Appellant’s App. p. 59, 64. Although these

acts may be viewed in hindsight as suggestive of Ashcraft’s caddish behavior, at the time

Lebo knew these facts, there is no way that a person in a similar position as Lebo would “feel

certain” that Ashcraft was engaging in illegal sexual acts with K.T.

       While Lebo need not have observed conduct of Ashcraft and K.T. satisfying the


                                               18
elements of a particular sex crime statute before she can be said to have a duty to report child

abuse or neglect, see slip op. at 12-13, neither does the duty to report attach merely because

Lebo felt uncomfortable about some of Ashcraft’s actions. Importantly, the record is void of

anyone actually telling Lebo that Ashcraft and K.T. were having a sexual relationship. Based

on the knowledge that Lebo actually had, her actions of documenting her discomfort with

Ashcraft’s behavior in his personnel file, intervening to stop inappropriate behavior she

witnessed, and seeking Ashcraft’s resignation were reasonable. Although we may hope that

individuals make a report any time child abuse or neglect is suspected, the duty to report has

not been imposed by our legislature until one has “reason to believe” that abuse or neglect

has occurred. My view is that there was no evidence that such “reason to believe” existed

here, and therefore, the trial court should have granted Lebo’s motion to dismiss.

       Accordingly, I dissent.




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