                                                                          FILED
                                                                     Aug 30 2017, 5:39 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas W. Farlow                                           Curtis T. Hill, Jr.
Darren A. Craig                                            Attorney General
Emily K. Cremeans
Frost Brown Todd, LLC                                      George P. Sherman
Indianapolis, Indiana                                      Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Michael Amos,                                              August 30, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A04-1610-CR-2429
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Lisa F. Borges,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G04-1606-FC-21338



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                    Page 1 of 23
[1]   Michael Amos appeals the trial court’s denial of his motion to dismiss the

      charges against him. Amos raises one issue which we revise and restate as

      whether the court erred or abused its discretion in denying his motion to

      dismiss based on the statute of limitations. We affirm.


                                       Facts and Procedural History

[2]   On June 3, 2016, the State filed an affidavit of probable cause and an

      information charging Amos with sixteen counts of securities fraud, sixteen

      counts of offer or sale of an unregistered security, and one count of acting as an

      unregistered broker-dealer, all as class C felonies. The counts for securities

      fraud and offer or sale of unregistered securities alleged that Amos committed

      the crimes on or about dates from August 4, 2006, to February 23, 2009. These

      counts allege that Amos concealed the evidence of his offenses such that

      evidence sufficient to charge him was not available to the State until no earlier

      than June 2011, that Amos began in or about March 2009 sending updates to

      the investors to provide a reason why he was temporarily unable to make

      promised payments and describe the steps he was taking to fulfill his promises,

      and the email updates continued approximately monthly and were ongoing as

      recently as September 6, 2012. The State also alleged that Amos acted as an

      unregistered broker-dealer from August 6, 2008, to the present.


[3]   The State filed an affidavit for probable cause prepared by an investigator for

      the Indiana Secretary of State, Securities Division, which states the investigator

      identified two separate schemes involving thirteen investors in Indiana, a

      promissory note scheme and a real estate investment contract scheme. The
      Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 2 of 23
affidavit states that the promissory notes were for a period of time between

twelve and one hundred twenty months, each note indicated a specific interest

applied to the investor money, most of the notes purport to return thirty-six to

forty-eight percent interest annually, the investors viewed the promissory notes

as investments, and many of the investors purchased the notes using their

individual retirement accounts. The affidavit states that the real estate

investment contracts consisted of a sale agreement in which Amos sold

property to an investor, a lease agreement in which he would lease the property

from the investor immediately after the sale, and a second sale agreement in

which Amos would purchase the property back from the investor at the original

purchase price at the end of either five or ten years. The lease payments

equaled either thirty-six or forty-eight percent of the purchase price per year.

The affidavit further states that, from January 2007 until March 2011, Amos

received over $13 million from investors nationwide and over $6 million from

Indiana investors, that over $2.8 million was spent on personal expenses such

as car payments, school fees, student loans, mortgage payments, medical bills,

credit card bills, and church donations, and that he returned approximately $1.9

million to Indiana investors. The affidavit states that the promissory notes and

real estate investment contract operated as a Ponzi scheme, that Amos would

collect substantial upfront principal payments from investors and return a

fraction of that money each month, investors were led to believe an actual

business existed from which profits were derived, and in reality the enterprise

did not have the assets or profits to sustain the scheme.



Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 3 of 23
[4]   Additionally, the affidavit of probable cause states that the State of Indiana first

      became aware of Amos when a Consumer Complaint Form was submitted to

      the Office of the Indiana Attorney General in June 2011. The affidavit states

      that Amos concealed his actions from the investors in the manner in which he

      structured the securities, structured the promissory notes so the principal was

      not due to be returned to the investor for twelve to one hundred twenty months,

      and structured the real estate investment contracts so that the investors would

      not take actual possession of the properties and the investors did not expect to

      see their principal returned for ten years. The affidavit states that, once Amos

      failed to pay interest payments and lease payments, “he began, in or about

      March 2009, sending ‘updates,’ approximately monthly, to the investors,” and

      “[i]n these ‘updates’ Amos apologized for missing payments, blamed the missed

      payment on something beyond his control, and explained his plan for

      recovery.” Appellant’s Appendix Volume II at 70. The affidavit states “Amos

      repeatedly informed investors in these ‘updates’ that he expected to close a deal

      soon and then he could send payments” and “[i]nvariably, something beyond

      Amos’ control intervened, the deal could not be closed, and investors were not

      repaid.” Id. The affidavit further states that Amos also concealed his actions

      from the State of Indiana by offering and selling the securities without

      registering the securities or himself with the Indiana Secretary of State’s Office.


[5]   On July 12, 2016, Amos filed a motion to dismiss and a supporting brief

      arguing that the charges again him are barred by the applicable statute of

      limitations and that the securities fraud charges are deficiently pled. He


      Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 4 of 23
      maintained that he did not positively act to conceal his actions, the nature of

      the promissory notes and real estate investment contracts and their maturity or

      termination dates are clear from the faces of the documents, it was easily

      ascertainable at the time the documents were signed that he was not a registered

      agent or broker, and that, if his actions constitute an offense, that offense could

      have been determined by authorities or the alleged victims on the date the notes

      and contracts were signed.


[6]   On August 1, 2016, the State filed a response to Amos’s motion to dismiss and

      an affidavit in support. It argued that the structure of the securities prevented

      the discovery of crimes, and that, “all the way through 2015, [Amos] was

      sending regular emails to the investors preaching optimism about the prospects

      of the investments while making no mention of the fact that he had expended

      vast sums of the invested money for his own personal benefit” and “[t]hese

      emails fulfilled their intended purpose and delayed investors’ discovery of the

      crime committed until years had passed.” Id. at 91-92. It also argued that the

      securities fraud allegations were more than sufficient to place Amos on notice

      of the nature of the charges against him.


[7]   The affidavit in support of the State’s response included several attached

      investment documents and email messages. On December 1, 2014, Amos sent

      an email message with the subject “November Update” stating “I hope

      everyone had a happy thanksgiving, and I am very thankful for all of you,” “I

      am also thankful to be able to report that we are writing up our contract on our

      commercial transaction, and will be sending it out by the end of the week,”

      Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 5 of 23
“[w]e assume the contract will be signed in the next three weeks, which will

allow us to begin the due diligence tests required by our money partner,” and

“[o]nce the contract is signed, we will be able to lock down the timing of the

due diligence tests and I will know a more exact date and impact it will have on

our recovery.” Id. at 116. The message stated “[b]elow is our recover outline, I

have removed the pending transactions list as I will begin providing close dates

by project as we are informed by the lenders,” “[i]n this financial environment it

is impossible to anticipate when and if a lender or buyer will follow through on

previous commitments,” and “I hope that this letter will provide you the

cautious optimism that I have at this point in regards to our full recovery.” Id.

The message also stated:

        As a reminder our 5 step plan is listed below.

        [] Step 1 – Stabilization

                 a. We need to close an initial transaction to provide a
                 stable base of income and opportunity to recover.

                 b. Once an initial transaction is closed it will act as a
                 catalyst to other transactions which will accelerate our
                 recovery.

        [] Step 2 – Partial Payments . . . As soon as cash flow allows will
        begin making partial payments to all.

        [] Step 3 – Full payments . . . As soon as possible we will resume
        make full payments

        [] Step 4 – Repayment of missed payments . . . Once cash flows
        allow we will begin repaying any missed payments



Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017    Page 6 of 23
              [] Step 5 – Buyouts . . . Once cash flows allow, for anyone who
              wishes, we will accelerate the repurchase of real estate allowing
              individuals to once again be in a cash position.


      Id.


[8]   On January 3, 2015, Amos sent an email message with the subject “December

      Update” stating that “[w]e continue to go back and follow on the contract and

      hoping that we can settle the contract in the next couple of weeks,” “[o]nce we

      got into the holidays things slowed down quite a bit,” “[w]e assume the

      contract will be signed in the next three weeks, which will allow us to begin the

      due diligence tests required by our money partner,” and that he was planning

      on sending the next update on January 30th. Id. at 102. The message also

      stated “[i]n this financial environment it is impossible to anticipate when and if

      a lender or buyer will follow through on previous commitments,” and “I hope

      that this letter will provide you the cautious optimism that I have at this point in

      regards to our full recovery.” Id. The January 2015 message also included the

      five-step recovery plan.


[9]   On April 8, 2015, Amos sent an email message with the subject “March

      Update” stating “I was not able to meet with my partner and the money partner

      in March as they spent most of the month of March in Florida working on

      other transactions,” “[t]hey are scheduled to come back next week and have

      stated they will meet with me to see if we can come to terms and close the

      commercial transaction we have been working,” “[t]he good news is that I have

      met with two new money partners and we are in discussions on new

      Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 7 of 23
       commercial property projects,” “I have provided them each several

       opportunities to review and will be meeting with them this week and next to

       discuss the next steps,” “[t]here is definitely all lot [sic] of activity happening in

       the last month and my hope is that it leads to a closing very quickly,” and that

       he planned to send the next update on April 30th. Id. at 132. The message also

       stated “[i]n this financial environment it is impossible to anticipate when and if

       a lender or buyer will follow through on previous commitments,” and “I hope

       that this letter will provide you the cautious optimism that I have at this point in

       regards to our full recovery.” Id. The April 2015 message also included the

       five-step recovery plan.


[10]   Amos sent an email message dated September 9, 2015, with a subject line of

       “September Update,” stating “[w]e received some bad, but not completely

       unexpected news,” “[o]ur buyer informed us that Wells Fargo underwriting will

       not give any value to the signed lease and thus the property will not appraise for

       the amount the buyer needs in order to qualify for the loan,” “[s]ome potential

       good news is that I have a broker that I am referring to our buyer to that has

       access to non-bank loans and might still allow us to close the transaction, but

       will delay our closing,” that “[m]y partner also informed me that we have a

       potential new cash buyer that is showing some interest,” and that he would

       provide an additional update by October 1st. Id. at 160. The message again

       stated “I will begin providing closing dates by project as we are informed by the

       lenders,” “[i]n this financial environment it is impossible to anticipate when and

       if a lender or buyer will follow through on previous commitments,” and “I hope


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 8 of 23
       that this letter will provide you the cautious optimism that I have at this point in

       regards to our full recovery.” Id. Also, like the other email messages, the

       September 2015 message included the five-step recovery plan.


[11]   On August 24, 2016, the trial court issued Findings of Fact and Conclusions of

       Law. The court found in part that, “[a]s recently as September 9, 2015, Amos

       sent an email to some investors updating them on various problems with a

       particular investment and stressing ‘cautious optimism’ in a five-step recovery

       plan” and that other investors received similar emails. Id. at 11. The court

       concluded that “the State has alleged facts sufficient to justify the tolling of the

       statute of limitations to, at the earliest, June 10, 2011, the date on which the

       first complaint against [Amos] was forwarded to the state.” Id. at 12. The

       court also concluded the State did not insufficiently plead the securities fraud

       counts and denied Amos’s motion to dismiss. Amos now brings this

       interlocutory appeal.


                                                     Discussion

[12]   The issue is whether the trial court erred or abused its discretion in denying

       Amos’s motion to dismiss the charges against him based upon the statute of

       limitations. A trial court’s denial of a motion to dismiss is reviewed for an

       abuse of discretion. Study v. State, 24 N.E.3d 947, 950 (Ind. 2015), cert. denied,

       136 S. Ct. 412 (2015). We review a matter of statutory interpretation de novo

       because it presents a question of law. Id.




       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 9 of 23
[13]   Amos argues that the statute of limitation expired before the State filed the

       information against him and that the tolling provision based on concealment is

       inapplicable because neither the information nor the probable cause affidavit

       alleges any actions by him to conceal the commission of a crime. He argues

       that charging documents do not allege that he threatened the alleged victims to

       prevent them from reporting the offenses to the Indiana Secretary of State or

       that he manipulated financial records or other documents related to the notes

       and contracts. He asserts the nature of the notes and contracts and their

       maturity and termination dates are clear from the faces of the documents, that it

       was easily ascertainable at the times the documents were signed that he was not

       a registered agent or broker, and that he did nothing to keep the authorities

       from learning of the alleged offenses or to prevent them from investigating it.

       He also argues that the “alleged ‘updates’ were not provided to authorities and

       would not have affected the ability of investigating authorities to discovery [sic]

       any of the alleged offenses, as required for the concealment-tolling provision.”

       Appellant’s Brief at 11.


[14]   The State maintains that Amos sold unregistered securities that he structured to

       mature years later, an investor would have had no reason to believe that a crime

       occurred until the securities matured and the investor was not paid, the State

       could not know a crime had occurred because Amos was not registered and did

       not register the securities and the unregistered transactions occurred between

       two private parties, and, “[i]n other words, by structuring the securities in the

       manner that he did and by failing to register, Amos took positive steps to


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 10 of 23
       conceal the fact that criminal activity was occurring.” Appellee’s Brief at 11.

       The State asserts that the charging documents and accompanying probable

       cause affidavit alleged that Amos was engaged in a Ponzi scheme, that he

       concealed this fact by informing investors that he was temporarily unable to

       make promised payments but was taking steps to fulfill his promises, that

       “[t]hrough his communications with investors, Amos sought to lull investors

       into complacency by sending regular updates in which [he] expressed his

       ‘cautious optimism’ about the viability of the investments” and “claimed that

       ‘he expected to close a deal soon[,]’ which would allow him to continue

       sending payments,” and that “[t]hese emails fulfilled their intended purpose of

       allaying potential concerns of investors and delaying the discovery of the crimes

       committed until years had passed.” Id. at 11-12.


[15]   With respect to Amos’s assertion that the charging documents fail to allege

       concealment because they do not allege he threatened the alleged victims, the

       State’s position is that “in this context, threatening an investor would be

       counterproductive and more likely to cause the investor to become suspicious

       and report the person making the threats to authorities,” “[a] more effective

       concealment strategy, as evidenced by the allegations here, is to attempt to

       alleviate investors’ potential concerns by falsely reassuring them that there has

       only been a temporary setback and payments will resume again in the not too

       distant future,” and “[t]his strategy is much more likely to lull investors into a

       false sense of security and delay discovery that criminal activity is taking place.”

       Id. at 13-14. The State also argues that, “[s]ince Amos’s investors were


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 11 of 23
       dependent on him for information regarding their investments, [his]

       communications served to conceal the criminal nature of the investments from

       the investors” and “Amos’s acts of concealment were so effective that most of

       the investors never realized that they might be victims of a crime until

       approached by authorities.” Id. at 14.


[16]   Indiana Code § 35-41-4-2(a) provides that a prosecution for an offense is barred

       unless it is commenced “within five (5) years after the commission of the

       offense, in the case of a . . . Class C . . . felony (for a crime committed before

       July 1, 2014) . . . .” Indiana Code § 35-41-4-2(h) provides in part:

               The period within which a prosecution must be commenced does
               not include any period in which:

                                                      *****

                        (2) 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 that authority by exercise of
                        due diligence . . . .


[17]   The primary purpose of statutes of limitations is to protect defendants from the

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

       stale evidence. Study, 24 N.E.3d at 953. Statutes of limitations are also

       intended to strike 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.

       Any exception to the limitation period must be construed narrowly and in a

       light most favorable to the accused. Id.

       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 12 of 23
[18]   The State filed the charging information and the affidavit of probable cause on

       June 3, 2016. The counts for securities fraud and offer or sale of unregistered

       securities alleged that Amos committed the crimes on or about dates from

       August 4, 2006, to February 23, 2009, and the count for acting as an

       unregistered broker-dealer alleged Amos committed the crime between August

       6, 2008, and the present, and all of the charged counts constitute class C

       felonies.


[19]   The Indiana Supreme Court has held: “The application of the concealment-

       tolling provision under Indiana Code § 35-41-4-2(h)(2) requires a positive act by

       the defendant that is calculated to conceal the fact that a crime has been

       committed.” Id. at 957. The Court has also observed: “Obviously, proof of

       ‘concealment’ . . . is a fact-intensive issue.” Willner v. State, 602 N.E.2d 507,

       509 (Ind. 1992). The parties cite Study, 24 N.E.3d 947, Kifer v. State, 740

       N.E.2d 586 (Ind. Ct. App. 2000), State v. Chrzan, 693 N.E.2d 566 (Ind. Ct. App.

       1998), and Dvorak v. State, 78 N.E.3d 25 (Ind. Ct. App. 2017), trans. pending.1


[20]   In Study, the State charged John Study with several counts of robbery, and

       Study moved to dismiss one of the counts on the grounds it was barred by the

       statute of limitations. 24 N.E.3d at 948-949. The charging information alleged

       that “concealment occurred when Study concealed his identity by wearing a

       mask, and concealed the getaway car, clothes worn during the crime, items



       1
         Amos filed a notice of additional authority citing Dvorak as the opinion was published following the filing of
       the parties’ briefs.

       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                        Page 13 of 23
taken from a victim, the weapon used, and evidence linking the robbery to other

robberies.” 24 N.E.3d at 954. The Court observed that “[n]one of these actions

would serve to prevent law enforcement from discovering that a bank had been

robbed,” “[t]he State’s ability to investigate the crime and develop a case was

not thwarted,” “[l]aw enforcement officials discovered the robbery and were

able to begin investigating immediately,” and “[t]herefore, the State’s interest

was sufficiently served as there was nothing delaying their ability to

investigate.” Id. The Court also stated:


        If concealment of guilt is all that is required to toll the statute of
        limitations, it is hard to imagine when the concealment-tolling
        provision would not apply. In almost every criminal case, the
        offender is going to attempt to conceal that they have committed
        the offense. Under that reading, in order to avoid tolling the
        statute of limitations, a criminal defendant would have to leave
        incriminating evidence at the crime scene or deliver it to police.
        Should the statute be read to require that Study turn over the
        getaway car or return items stolen from a victim in order to avoid
        tolling? As Judge Mathias stated, allowing any concealment of
        guilt to toll the statute of limitations would “vitiate[ ] this public
        policy in all but very few crimes, leaving us with an effectively
        meaningless statute of limitations.” Study, No. 06A04-1308-CR-
        391, Slip Op. at *16. We agree that the exception cannot be read
        to swallow the rule.

        This is not to suggest that the concealment-tolling provision
        would never be applicable in the instance of a robbery. For
        example, an individual may rob a jewelry store and threaten the
        employee into forging sales receipts and altering accounting
        documents to make it appear as if no robbery had occurred.
        After the robbery, the offender may continue sending threatening
        mail or messages to the employee to not report the robbery. In
        this instance, the criminal would have taken positive actions to

Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 14 of 23
               conceal that a robbery had occurred, which would inevitably
               result in some delay before law enforcement could commence an
               investigation. Allowing the statute of limitations to run in this
               scenario would function as a windfall to the defendant and
               unduly burden the State’s ability to build a case and bring
               charges. As such, the application of a tolling provision is
               warranted.

               However, here, there is no dispute that the police were aware
               that the bank robbery on March 21, 2006 had occurred. The
               police immediately began investigating and even discovered the
               connections between the March 21, 2006 robbery and subsequent
               robberies for which Study was eventually charged. Thus, even
               Study’s attempts to conceal his guilt were not thwarting the
               progress of the police investigation.


       Id. at 956-957. The Court noted that “the concealment, to avoid the running of

       the statute, must be of the crime itself,” id. at 957 (citing State v. Hoke, 84 Ind.

       137, 138 (1882)), and that Indiana courts have continued to hold that

       concealment tolls the statute of limitations only when there is a positive act

       performed by the defendant that is calculated to prevent the discovery that a

       crime has been committed. Id. (citations omitted). The Court concluded that

       “Study did not engage in any positive act calculated to conceal the fact that a

       robbery occurred on March 21, 2006” and that therefore the statute of

       limitations as to that offense was not tolled and the charge should have been

       dismissed. Id. at 957-958.


[21]   In Kifer, in October of 1987 David Kifer left the scene of an accident in which

       he struck and killed a jogger and later removed his license plates and headlight

       rings from his car and sold it to a salvage yard. 740 N.E.2d at 586-587. In

       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 15 of 23
       September 1997, police received a tip that Kifer had been the driver, and after

       investigation the State charged Kifer in September 1999. Id. at 587. Kifer

       moved to dismiss the charge based on the statute of limitations, and the trial

       court denied the motion. Id. On appeal, this Court found that Kifer concealed

       evidence of his guilt by altering and disposing of the car involved in the accident

       but did not conceal the fact that a crime had been committed, it was undisputed

       that the police were aware in October 1987 that a fatal hit and run accident had

       occurred, and therefore the commission of the offense was fully known in 1987

       and the State’s prosecution of Kifer twelve years later was barred by the statute

       of limitations. Id. at 588.


[22]   In Chrzan, Chester Chrzan resigned as manager of a grain elevator effective

       January 13, 1994, and on January 18, 1994 contacted Martin, his replacement

       as the elevator manager. 693 N.E.2d at 567. Chrzan wrote two checks totaling

       $16,000 and gave them to Martin, told Martin the checks were payment for

       beans that he bought, and later Martin thought that something was amiss in

       that there may have been double payment for the beans and there was a

       shortage of beans stored at the elevator. Id. Martin did not advise anyone

       about his thoughts and started an investigation. Id. The corporate directors of

       the elevator met with Chrzan in May of 1994 and again in September as a part

       of an audit, and it developed that Chrzan had secreted $12,000 to $15,000 for

       use in the event he was fired as manager. Id. A settlement negotiation between

       the directors and Chrzan failed. Id. The directors approached the prosecutor

       about the matter in the spring of 1995, and the prosecutor filed charges of

       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 16 of 23
       misappropriation of funds and the knowing use of a false measure as

       misdemeanors against Chrzan on January 16, 1996, which was three days after

       two years had passed since Chrzan resigned as manager. Id. at 566-567. The

       trial court granted a motion to dismiss the charges, holding that the two-year

       statute of limitations barred prosecution. Id. at 566. On appeal, this Court

       noted that the concealment of facts that an offense has been committed must be

       the result of the defendant’s positive acts and that positive acts of concealment

       include the threat of bodily harm and the existence of a coercive relationship.

       Id. at 567. We further noted the State’s argument that Chrzan’s manipulation

       of financial records during the two years prior to his resignation as manager,

       and the writing of the two checks on January 18, 1994, were positive acts of

       concealment as contemplated by the statute, and held “[w]e agree that these

       acts were positive acts on the part of the perpetrator to conceal the fact that a

       crime had been committed,” and reversed the court’s ruling on the motion to

       dismiss. Id.


[23]   In Dvorak, the State charged Dvorak in June 2015 with offer or sale of an

       unregistered security and acting as an unregistered agent as class C felonies, and

       the information alleged that Dvorak committed the illegal acts on or about July

       9, 2007. Dvorak, 78 N.E.3d at 26-27. Dvorak filed a motion to dismiss arguing

       the charges were barred by the statute of limitations and that the statute of

       limitations was not tolled, and in response the State argued that Dvorak

       concealed the offenses by structuring the securities to mature three years later

       resulting in the alleged victim having no reason to believe that a crime occurred


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 17 of 23
       until those securities matured. Id. at 27. The trial court denied Dvorak’s

       motion to dismiss. Id.


[24]   On appeal, Dvorak argued that there were no allegations of any positive act

       that he committed to conceal the fact that an offense had been committed, and

       the State argued that “Dvorak’s structuring of the unregistered security included

       the selection of a maturity date that would cause his illegal activity to fly under

       the radar for three years after the illegal sale.” Id. at 29. This Court held that

       “Dvorak points out, however, that whether he was registered to offer or sell

       securities and whether the security was registered were matters of public records

       on the date of the alleged offenses,” the alleged victim “could have determined

       those facts at the time he entered into the agreements,” and “[t]he maturity date

       of the agreements did not prevent [the alleged victim] from determining that

       Dvorak and the securities were unregistered.” Id. The Court also observed that

       the State had noted that failing to disclose that a security is not registered and

       that a seller is not registered as a broker-dealer has been found to be a material

       omission on the part of the seller. Id. (citing Manns v. Skolnik, 666 N.E.2d 1236,

       1249 (Ind. Ct. App. 1996), trans. denied). The Court observed that “Manns dealt

       with fraud allegations against the defendant in the context of an administrative

       complaint, and the omission was relevant to the fraud determination,” that

       “[i]n the context of concealment tolling the statute of limitations in a criminal

       case, our courts have held that a ‘positive act’ to conceal the fact that an offense

       has been committed is required,” id. at 30 (citing Study, 24 N.E.3d at 952), and

       that “[t]he omission discussed in Manns is not, however, a ‘positive act,’ which


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 18 of 23
       is necessary to toll the statute of limitations.” Id. We concluded that Dvorak

       did not engage in any positive act calculated to conceal the fact that he was not

       registered and the security was not registered with the Secretary of State and

       that the trial court erred in denying Dvorak’s motion to dismiss. Id.


[25]   In addition, we are mindful that Amos has brought this interlocutory appeal

       from the denial of his motion to dismiss based on the statute of limitations and

       that, in Woods v. State, this Court held: “The State must only make sufficient

       allegations in the charging information that the alleged crimes fall within the

       statute of limitations; whether the State has actually met its burden of proving

       that the alleged crimes fall within the statute of limitations is a question for

       trial.” 980 N.E.2d 439, 442 (Ind. Ct. App. 2012) (citing Reeves v. State, 938

       N.E.2d 10, 15-16 (Ind. Ct. App. 2010), reh’g denied, trans. denied). We further

       said that the State must plead the circumstances of the concealment exception

       in the charging information, that pleading must contain sufficient facts 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, and the information must also state

       the date of the offense with sufficient particularity to show that the offense was

       committed within the period of limitations applicable to that offense. Id. at 442-

       443 (citing Reeves, 938 N.E.2d at 15-16 (“Indeed, the State has the burden at

       trial of establishing that the crime charged was committed within the statute of

       limitation. However, as this is an interlocutory appeal from a motion to

       dismiss, we deem that the more appropriate issue at hand is whether the State

       has met its initial burden of making sufficient allegations in the charging


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 19 of 23
       information that the offenses were committed within the applicable statute of

       limitation.”) (citation omitted); Willner, 602 N.E.2d at 509; Ind. Code § 35-34-1-

       2(a)(5)2).


[26]   In this case, the counts charging Amos with securities fraud and offer or sale of

       unregistered securities alleged that he concealed the evidence of his offenses

       such that evidence sufficient to charge him was not available to the State until

       no earlier than June 2011, and that Amos began in or about March 2009

       sending updates to the investors to provide a reason why he was temporarily

       unable to make promised payments and describing the steps he was taking to

       fulfill his promises. In addition, the affidavit of probable cause says that the

       State first became aware of Amos when a complaint was submitted to the

       Indiana Attorney General in June 2011. The affidavit further states that Amos

       began sending email updates to investors “approximately monthly,” “[i]n these

       ‘updates’ Amos apologized for missing payments, blamed the missed payment

       on something beyond his control, and explained his plan for recovery,” “Amos

       repeatedly informed investors in these ‘updates’ that he expected to close a deal

       soon and then he could send payments,” and “[i]nvariably, something beyond

       Amos’ control intervened, the deal could not be closed, and investors were not

       repaid.” Appellant’s Appendix Volume II at 70.




       2
         Indiana Code § 35-34-1-2(a) provides that “[t]he indictment or information shall be in writing and allege the
       commission of an offense by: . . . (5) stating the date of the offense with sufficient particularity to show that
       the offense was committed within the period of limitations applicable to that offense . . . .”


       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                         Page 20 of 23
[27]   With respect to the counts of securities fraud and offer or sale of an unregistered

       security, we conclude that the State has pled the circumstances of the

       concealment exception in the charging information and the information

       contains sufficient facts, namely, that Amos began sending updates to the

       investors in or about March 2009 to provide a reason why he was temporarily

       unable to make promised payments and describe the steps he was taking to

       fulfill his promises, such that Amos was apprised of the facts upon which the

       State intends to rely and may be prepared to meet that proof at trial. See Woods,

       980 N.E.2d at 442. Even assuming that Amos’s structuring of the notes and

       contracts to mature after the statute of limitations had run does not toll the

       statute of limitations, we observe that Amos sent regular email messages to the

       investors as set forth in the charging information and the affidavit of probable

       cause and that these messages essentially assured investors that he had a plan to

       recover their investments and was working with additional brokers, partners,

       lenders, and investors to do so. These regular communications, in light of their

       content, assurances, and requests for patience, may be determined to have been

       Amos’s attempt to delay or prevent the discovery of his commission of the

       alleged crimes of securities fraud and offer or sale of an unregistered security

       and thus constituted positive acts of concealment for purposes of tolling the

       statute of limitations. See Chrzan, 693 N.E.2d at 567 (finding in part that

       Chrzan’s actions of writing two checks and telling a manager they were

       payment for beans he had bought constituted a positive act to conceal the fact a




       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 21 of 23
crime had been committed).3 At a minimum, the State has pled sufficient facts

in its information that the alleged crimes fall within the statute of limitations,

and the trier of fact may ultimately determine at trial whether the State has

actually met its burden of proving that the alleged crimes fall within the statute

of limitations. See Woods, 980 N.E.2d at 442 (“The State must only make

sufficient allegations in the charging information that the alleged crimes fall

within the statute of limitations; whether the State has actually met its burden

of proving that the alleged crimes fall within the statute of limitations is a

question for trial.”). As for the count of acting as an unregistered broker-dealer,

the charging information alleges that, “[o]n or about and between August 6,

2008 and the present,” Amos transacted business as a broker-dealer with certain

individuals without being registered with the Indiana Secretary of State as

required, Appellant’s Appendix Volume II at 52 (emphasis added). Thus,

prosecution for the alleged crime, to the extent the crime occurred after the date

five years prior to the filing of the charging information, is not barred by

Indiana Code § 35-41-4-2(a).4 Based upon the record, we conclude the trial

court did not err in denying Amos’s motion to dismiss.




3
  Unlike in Study and Kifer, where police were fully aware a crime had occurred soon after the crimes were
committed, in this case the State claims it first learned of Amos’s actions when a complaint was submitted to
the Office of the Indiana Attorney General in June 2011.
4
 Also, Amos does not argue that the charging information for the count of acting as an unregistered broker-
dealer is deficiently pled. This count does not allege that Amos engaged in any positive act calculated to
conceal the fact he was not registered with the Indiana Secretary of State.

Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017                      Page 22 of 23
                                                    Conclusion

[28]   For the foregoing reasons, we affirm the trial court’s denial of Amos’s motion

       to dismiss.


[29]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 49A04-1610-CR-2429 | August 30, 2017   Page 23 of 23
