MEMORANDUM DECISION
                                                                             FILED
Pursuant to Ind. Appellate Rule 65(D), this                             Jan 18 2017, 8:31 am
Memorandum Decision shall not be
regarded as precedent or cited before any                                    CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
court except for the purpose of establishing                                  and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Curtis T. Hill, Jr.                                       DAVID BIELA AND JAMES
Attorney General of Indiana                               LIVERMAN
                                                          Stephen A. Kray
Ellen H. Meilaender                                       LaPorte, Indiana
Deputy Attorney General
Indianapolis, Indiana
                                                          ATTORNEYS FOR APPELLEES
                                                          SANLEY MAZUR AND GREGORY
                                                          CZIZEK
                                                          William F. Sullivan, Jr.
                                                          Michigan City, Indiana
                                                          Stephen A. Kray
                                                          LaPorte, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        January 18, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         46A03-1608-CR-1742
        v.                                               Appeal from the LaPorte Superior
                                                         Court
David Biela, Gregory Czizek,
James Liverman, and Stanley                              The Honorable Michael S.
                                                         Bergerson, Judge
Mazur,
                                                         Trial Court Cause Nos.


Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017          Page 1 of 22
      Appellees-Defendants.
                                                                   46D01-1602-F5-155
                                                                   46D01-1602-F5-156
                                                                   46D01-1602-F5-160
                                                                   46D01-1602-F5-161



      Brown, Judge.

[1]   The State of Indiana appeals the trial court’s order granting motions to dismiss

      filed by David Biela, Gregory Czizek, James Liverman, and Stanley Mazur

      (together, the “Appellees”). The State raises one issue which we revise and

      restate as whether the trial court abused its discretion in denying the State’s

      motions to amend its charging informations and in dismissing the charges

      against the Appellees. We reverse and remand.


                                          Facts and Procedural History

[2]   On February 19, 2016, the State filed charges against each of the Appellees

      under separate causes. 1 The State charged Biela under cause number 46D01-

      1602-F5-155 (“Cause No. 155”) with five counts of promoting professional

      gambling as level 6 felonies and one count of corrupt business influence as a

      level 5 felony. 2 The State charged Czizek under cause number 46D01-1602-F5-




      1
        According to the State, it also charged John Greene under another cause with five counts of promoting
      professional gambling as level 6 felonies and one count of corrupt business influence as a level 5 felony and
      he pled guilty to two counts of promoting professional gambling as level 6 felonies in exchange for dismissal
      of the other counts.
      2
          Amended information was filed against Biela on March 15, 2016, to correct a typographical error.


      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017           Page 2 of 22
156 (“Cause No. 156”) with three counts of promoting professional gambling as

level 6 felonies and one count of corrupt business influence as a level 5 felony.

The State charged Liverman under cause number 46D02-1602-F5-160 (“Cause

No. 160”) with four counts of promoting professional gambling as level 6

felonies and one count of corrupt business influence as a level 5 felony. The

State charged Mazur under cause number 46D01-1602-F5-161 (“Cause No.

161”) with five counts of promoting professional gambling as level 6 felonies

and one count of corrupt business influence as a level 5 felony. The

information filed in each of the Appellee’s cases alleged, with respect to the

counts of promoting professional gambling as level 6 felonies, that the Appellee

“did knowingly or intentionally own, manufacture, possess, buy, sell, rent,

lease, repair or transport a gambling device, to wit: . . . parlay cards . . . for

illegal football betting and wagers” and referred to Ind. Code § 35-45-5-4(a)(1). 3




3
 The informations cited “I.C. 35-45-5-4 (1),” which appears to be a reference to Ind. Code § 35-45-5-4(a)(1).
Ind. Code § 35-45-5-4(a)(1) provides that a person who “knowingly or intentionally owns, manufactures,
possesses, buys, sells, rents, leases, repairs, or transports a gambling device, or offers or solicits an interest in a
gambling device” commits promoting professional gambling, a level 6 felony. Ind. Code § 35-45-5-1(e)
provides:
         “Gambling device” means:
                   (1) a mechanism by the operation of which a right to money or other property
                   may be credited, in return for consideration, as the result of the operation of an
                   element of chance;
                   (2) a mechanism that, when operated for a consideration, does not return the
                   same value or property for the same consideration upon each operation;
                   (3) a mechanism, furniture, fixture, construction, or installation designed
                   primarily for use in connection with professional gambling;
                   (4) a policy ticket or wheel; or
                   (5) a subassembly or essential part designed or intended for use in connection
                   with such a device, mechanism, furniture, fixture, construction, or installation.

Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017                  Page 3 of 22
      Appellant’s Appendix, Volume 2, at 15-16, 49, 80, 110-111. The information

      for each of the Appellees alleged, with respect to the counts of corrupt business

      influence, that the Appellee “was associated with a group of individuals who

      promoted illegal gambling through distribution, collection and payments

      associated with parlay cards for illegal football betting and wagers.” 4 Id. at 16,

      49-50, 81, 111.


[3]   An affidavit for probable cause prepared by Indiana Gaming Commission

      Officer Jeffery Boyd was filed in each of the four causes. The affidavit stated

      that an investigation corroborated anonymous information regarding an illegal

      gambling operation and that “[t]he gambling devices utilized throughout were

      ‘parlay cards,’ or sports betting cards, which list the week’s games and odds on

      those games.” Id. at 9. The affidavit stated that Liverman would visit Biela’s

      print shop, return to his vehicle carrying a bag containing items consistent with

      stacks or bulk packs of cards, and drive to other locations in an apparent

      delivery route, that his behavior was consistent through the football seasons of

      2013, 2014, and 2015, that on one occasion Liverman was observed delivering a

      bag to a manager at a certain establishment, that based on Boyd’s training and

      experience he believed this to be the previous week’s payouts and new parlay



               In the application of this definition, an immediate and unrecorded right to replay
               mechanically conferred on players of pinball machines and similar amusement devices is
               presumed to be without value.
      4
       The informations cited Ind. Code § 35-45-6-2(3), which provides that a person “who is employed by or
      associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the
      activities of that enterprise through a pattern of racketeering activity; commits corrupt business influence, a
      Level 5 felony.”

      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017             Page 4 of 22
      cards, and that after Liverman left, another patron asked the manager for a card

      and the manager reached into the bag Liverman had delivered and handed a

      card to the person. The affidavit provided that Greene was observed interacting

      with Liverman and Biela, picking up cards from Biela’s residence, and traveling

      a route to several bars and restaurants, that Gaming Commission officers were

      able to purchase football parlay cards at multiple establishments Greene was

      observed to visit, and that on one occasion Gaming Commission officers were

      able to obtain football parlay cards at a Michigan City establishment and place

      bets on them. The affidavit stated that, during the 2013, 2014, and 2015

      football seasons, Mazur was observed on multiple occasions picking up parlay

      cards from Biela’s home and business.


[4]   Further, the affidavit stated that search warrants were executed at Biela’s

      residence and his print shop, multiple items consistent with bookmaking were

      documented and seized, Biela made admissions he had been printing parlay

      cards for a long time and the current business was divided up between Greene,

      Liverman, Mazur, and Czizek, he printed 1,150 cards weekly for Greene, 1,200

      weekly for Liverman, 600 for Czizek, and 900 for Mazur, that these individuals

      control the parlay card distribution and no other person would be able to

      distribute cards in the area, and that, at the print shop, a shelf was observed

      containing football parlay cards under the names of Greene, Mazur, Czizek,

      and Liverman. In the paragraph describing the execution of the search

      warrants at Biela’s residence and print shop, the affidavit included a sentence

      stating that, “[d]uring the execution of that search warrant, the phones in the


      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 5 of 22
      residence rang constantly with individuals seeking to place bets.” Id. at 12. The

      affidavit stated that ledgers of betting records and parlay cards were discovered

      at Liverman’s home during the execution of a search warrant, that bank bags

      and parlay cards were discovered at Greene’s home during the execution of a

      search warrant, that throughout the search warrant execution the name Czizek

      came up from Biela and was found on the shelves of printed parlay cards, and

      that Biela indicated Czizek was involved in the distribution of parlay cards.


[5]   At the initial hearing on March 1, 2016, the court scheduled the omnibus date

      for April 21, 2016 in each cause. On March 24, 2016, Biela filed a

      Consolidated Motion to Dismiss Amended Charging Information and Quash

      Affidavit for Probable Cause, arguing in part that parlay cards do not fall within

      the statutory definition of an illegal gambling device and that his printing,

      possessing, and delivery of parlay cards to others does not render him

      criminally liable for how they were used by others. 5


[6]   On April 5, 2016, the State filed a request for leave to file an amended

      information against Biela under Cause No. 155. The State’s request stated that

      it “concedes there may be some merit to Defense Counsel’s argument regarding

      gambling devices and thus files this amended information under a more

      appropriate subsection of the chapter under which original charges were filed




      5
       Biela also argued that the affidavit should be dismissed because it was obtained by a law enforcement officer
      presenting false information and that the statement in the affidavit that, during the execution of a search
      warrant, the phones in the residence rang constantly was false.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017          Page 6 of 22
and and [sic] alleges the same underlying events involved.” Id. at 24. The State

argued that no trial date had been set and that Biela’s substantial rights were not

jeopardized. 6 On the same day the State also filed requests for leave to file

amended informations in the other causes. With respect to the charges for

promoting professional gambling, the State requested that the informations be

amended to allege that the Appellees “did . . . knowingly or intentionally . . .

receive gambling information by any means, to wit: . . . football game and point

spread information” and to cite to Ind. Code § 35-45-5-4(a)(2). 7 Id. at 27, 58,

89-90, 119-120. The State also requested the charging informations for each of

the Appellees be amended, with respect to the counts of corrupt business

influence, to allege the Appellee “was associated with a group of individuals

who promoted illegal gambling.” Id. On May 10, 2016, Czizek, Livermore,

and Mazur each filed motions to dismiss the charges against them. Entries

dated April 22, 2016, in the chronological case summaries state that the court

scheduled a hearing for May 19, 2016, and set an omnibus date for June 16,

2016.




6
  The State also indicated that it was filing an amended probable cause affidavit to correct a scrivener’s error,
namely, that a sentence stating that the phones in the residence rang constantly during the execution of a
search warrant was erroneously included in the paragraph referring to Biela’s home but belonged instead in
the paragraph referring to Liverman’s home.
7
 Ind. Code § 35-45-5-4(a)(2) provides that a person who, “before a race, game, contest, or event on which
gambling may be conducted, knowingly or intentionally transmits or receives gambling information by any
means, or knowingly or intentionally installs or maintains equipment for the transmission or receipt of
gambling information,” commits promoting professional gambling, a level 6 felony.

Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017              Page 7 of 22
[7]   On May 19, 2016, the court held a joint hearing on the motions to dismiss and

      the motions to amend the charging informations. At the hearing, Biela’s

      defense counsel argued that the statute does not regulate or prohibit possession

      of parlay cards and that the probable cause affidavit does not state that Biela

      received any monetary gain from the gambling operation, received any

      percentage of the wins, or contributed to any percentage of the losses. The

      court noted that it did not see any evidence in the affidavit that would indicate

      that any wagers were even placed. Biela’s counsel noted that gambling means

      risking money for gain contingent upon chance and argued there is no evidence

      Biela did anything contingent upon chance. 8 The court asked if there was any

      evidence by affidavit or otherwise that Biela ever took a wager, and Biela’s

      counsel indicated there was not. The prosecutor conceded that parlay cards do

      not fit under the portion of the statute for possession of a gambling device but

      argued that the parlay cards were used to transmit gambling information which

      is illegal under the statute. The prosecutor noted that the definition of gambling

      information includes information intended to be used for professional

      gambling, 9 and argued that professional gambling is defined in the statute that

      criminalizes it and that the applicable definition is one that “[a]ccepts or offers




      8
        Ind. Code § 35-45-5-1(d) provides in part: “‘Gambling’ means risking money or other property for gain,
      contingent in whole or in part upon lot, chance, or the operation of a gambling device, but it does not include
      participating in: . . . (2) bona fide business transactions that are valid under the law of contracts.”

      9
        Ind. Code § 35-45-5-1(f) provides that “[g]ambling information” means “(1) a communication with respect
      to a wager made in the course of professional gambling; or (2) information intended to be used for
      professional gambling.”

      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017           Page 8 of 22
      to accept for profit money or other property raised in gambling.” 10 Transcript

      at 16.


[8]   The court asked if the probable cause affidavit indicated that there was an

      acceptance of money for professional gambling and noted that there had been a

      sworn statement that Greene physically took cash in exchange for one of the

      parlay cards. The prosecutor argued there was circumstantial evidence that the

      Appellees would return to collect their parlay cards and the money that had

      been wagered. The prosecutor indicated that this was mentioned in the

      affidavit which stated they returned to collect a bag. The court asked what was

      in the bag, and the prosecutor replied that she believed “agents would testify

      that that would be consistent with containing parlay cards and money. They

      would also return and pay out winners.” Id. at 20. The prosecutor further

      argued: “The wagers were filled out by individuals. Money was attached to

      them and they were put into a bag to be picked up by the four defendants.” Id.

      The court later asked “[s]o you’ve got evidence . . . that . . . there was some

      wagers being made,” the prosecutor replied affirmatively, the court asked “and

      why wasn’t that in the Affidavit,” and the prosecutor replied “I don’t believe we

      have to state our entire case within that Affidavit.” Id. at 20-21. The court

      stated “[w]ell enough to . . . get probable cause and . . . now you’re asking the

      Court to Amend the Charging Information.” Id. at 21. The prosecutor replied




      10
         Ind. Code § 35-45-5-3(a) provides in part that a person who knowingly or intentionally “accepts, or offers
      to accept, for profit, money, or other property risked in gambling” commits professional gambling, a level 6
      felony.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017           Page 9 of 22
      that the affidavit included the fact officers were able to place wagers, and the

      court stated: “One. One, with John Green[e] who pled guilty this morning.”

      Id. at 21. The prosecutor responded “Yes, Your Honor” and stated that the

      affidavit contained information that these individuals were observed multiple

      times running their routes and collecting their money and included substantial

      information that they knew they were transmitting gambling information. Id.


[9]   The court asked Officer Boyd if there was any information in the affidavit that

      indicated that the Appellees “took any cash in exchange – and made a wager?

      Took a wager,” and Officer Boyd testified “No, just the fact that they were – the

      gathering up the cards and, and like – as she had said, the [sic] had a route and

      had provided that information.” Id. at 40-41. When asked if the men took

      money directly, Officer Boyd indicated he observed Liverman take money but

      not the other Appellees. When asked why that was not included in the

      affidavit, Officer Boyd indicated he felt he had sufficient information in the

      affidavit to support the charges. The court stated that it was surprising that an

      investigation of this magnitude would have such little information about a

      gambling operation that only indicated that one defendant, who has pled guilty,

      took a bet on one occasion. The court noted that the motions to amend the

      charging informations were “not done within the 30 days of the original




      Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 10 of 22
       omnibus hearing,” and stated “[i]t was done 20 days, so it was not timely

       filed.” 11 Id. at 48.


[10]   On July 11, 2016, the court issued an Order on Defendants’ Motion to Dismiss

       and State’s Motions to Amend Information which denied the State’s motions to

       amend the charging informations and granted the motions to dismiss in each of

       the Appellees’ cases. The court found that parlay cards did not constitute

       gambling devices under Ind. Code § 35-45-5-4(a)(1). Further, the court noted

       that the State conceded at the hearing that its motion to amend was not timely

       filed pursuant to Ind. Code § 35-34-1-5. The court found that, though it has

       discretion to permit a belated amendment, the State’s argument that the

       Appellees’ substantial rights were not being violated was disingenuous. The

       court found that, in the first place, the State seeks to prosecute the Appellees

       under a totally different legal theory and different section of Ind. Code § 35-45-

       5-4(a). Secondly, it found that the State identified certain activities “which it

       contends support the finding of probable cause” and that the “described

       activities fail to allege any criminal conduct; given the fact that the mere

       possession of parlay cards is not illegal.” Appellant’s Appendix, Volume 2, at

       43-44, 73-74, 104-105, 135-136. The court also found that, in its attempt to

       rescue its case, the State’s motions to amend were “supported only by the

       marginally modified affidavit” of Officer Boyd which “again fails to allege an




       11
         The court scheduled the original omnibus date under each cause for April 21, 2016, and the State filed its
       requests to file amended informations on April 5, 2016, which was sixteen days before the omnibus date.

       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017         Page 11 of 22
       essential element of the crime of gambling . . . . ‘the risking of money or

       property on lot or chance,’ or in other words, the placement of a wager OR the

       making of a bet.” Id. at 44, 74, 105, 136. The court’s order also included the

       following in a footnote:


               It’s hard to believe that after three years of investigation that the
               Indiana Gaming Police were unable to establish any direct proof
               of illegal gambling other than the two wagers placed with
               Defendant John Greene; who has pled guilty. With respect to
               the conduct of the other charged defendants, the affidavit
               contains nothing more than speculation and conjecture.
               Criminal cases require much more proof than that.

               By contrast, in undercover drug cases investigated by the MCPD
               Drug Task Force, a confidential informant is outfitted with a
               wire and a ‘button cam’ to record the illegal exchange, together
               with prerecorded drug-buy cash. Use of such protocol, is
               standard operating procedure. The efforts of the Indiana Gaming
               Police fall woefully short of what is universally expected in such
               undercover operations.

       Id. at 44 n.3, 74 n.3, 105 n.3, 136 n.3. The court dismissed the charges against

       the Appellees.


                                                   Discussion

[11]   The issue is whether the trial court abused its discretion in denying the State’s

       motions to amend the charging informations and in dismissing the charges

       against the Appellees. The State argues that it sought to amend the charges to

       allege violations under subsection (a)(2) of the statute and that “[t]he operative

       facts supporting the charge remained the same, as the proffered amended

       charges alleged that the parlay cards, which contain point spread information,
       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 12 of 22
       constituted the ‘gambling information’ that the defendants transmitted or

       received.” Appellant’s Brief at 13. It notes that it sought the amendments

       sixteen days prior to the omnibus date and argues that the Appellees had a

       reasonable opportunity to prepare for and defend against the proposed amended

       charges and that no trial date had been scheduled. The State further asserts that

       “the court clearly thought it mattered whether [Appellees] themselves were

       involved in actual gambling,” that it was not alleging the Appellees placed

       wagers or bets but only that they received or transmitted information that was

       intended to be used to engage in professional gambling, and that the facts

       alleged were sufficient to state the offense of promoting professional gambling.

       Id. at 16-17. It also argues that “whether the evidence will be sufficient to prove

       the offense beyond a reasonable doubt is not a consideration that may come

       into play at this stage; a court may not dismiss charges because it finds the

       evidence insufficient to prove the offenses” and that, “even if [it] were required

       to prove that [Appellees] engaged in gambling, a perceived lack of sufficient

       evidence to prove this fact would not be a proper basis for dismissal.” Id. at 18.


[12]   Biela and Liverman assert that “[t]he trial court dismissed the original and

       requested amended informations for want of probable cause.” Appellee Biela

       and Liverman’s Brief at 5. They argue that, “[w]ithout being presented

       evidence of ongoing gambling in a three year gambling investigation the judge

       was hard pressed to determine probable cause that was sufficient to charge the

       defendants with a gambling offense, ie what gambling activity was aided,

       induced, or caused” by Appellees and “before what gambling events did the


       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 13 of 22
       defendants knowingly and intentionally transmit or receive gambling

       information for those events as charged.” Id. at 6. They argue that Biela

       engaged in bona fide business transactions. They also argue that the trial

       court’s decision was based on the want of sufficient probable cause supporting

       the original and proposed amended informations and “[y]et the State has

       chosen to waive this issue on appeal and focus only on the issue of statutory

       interpretation.” Id. at 8.


[13]   Mazur and Czizek argue that the court was within its discretion when it granted

       the motions to dismiss the charges rather than allowing the State to make

       substantive amendments, that the proposed amendment constitutes a totally

       different crime and legal theory of prosecution, and that the court correctly

       ruled the amendment “was a violation of the defendant’s substantial rights.”

       Appellee Mazur and Czizek’s Brief at 8. They also argue that the probable

       cause affidavit “is void of facts of transmitting gambling information, which is

       information that is intended to be used for professional gambling,” and that

       “[t]here is nothing in the Probable Cause Affidavit supporting gambling

       charges” against Mazur or Czizek. Id.


[14]   In reply, the State argues that the proposed amended informations merely

       changed the subsection of the statute under which the charges were brought,

       that it is black-letter law in Indiana that a lack of probable cause is not a proper

       basis upon which charges may be dismissed, that the offense can be committed

       even if no one ever actually uses the information in order to place or receive a



       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 14 of 22
       bet or wager, and that the probable cause affidavit clearly alleges the receipt of

       the gambling information by Mazur and Czizek.


[15]   A charging information may be amended at various stages of a prosecution,

       depending on whether the amendment is to the form or to the substance of the

       original information, and whether an amendment to a charging information is a

       matter of substance or form is a question of law. Erkins v. State, 13 N.E.3d 400,

       405 (Ind. 2014) (citations omitted), reh’g denied. Ind. Code § 35-34-1-5(b)

       provides:

               The indictment or information may be amended in matters of
               substance and the names of material witnesses may be added, by
               the prosecuting attorney, upon giving written notice to the
               defendant at any time:

                        (1)     up to:

                                (A)      thirty (30) days if the defendant is charged
                                         with a felony; or

                                (B)      fifteen (15) days if the defendant is charged
                                         only with one (1) or more misdemeanors;

                                before the omnibus date; or

                        (2)     before the commencement of trial;

               if the amendment does not prejudice the substantial rights of the
               defendant. . . .


[16]   A defendant’s substantial rights include a right to sufficient notice and an

       opportunity to be heard regarding the charge, and if the amendment does not

       affect any particular defense or change the positions of either of the parties, it

       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 15 of 22
       does not violate these rights. Erkins, 13 N.E.3d at 405 (citation omitted).

       Ultimately, the question is whether the defendant had a reasonable opportunity

       to prepare for and defend against the charges. Id. at 405-406 (citations omitted).


[17]   Here, the State’s proposed amendments to the charging informations against

       the Appellees do not prejudice their substantial rights. The original charging

       informations were filed on February 19, 2016, and the State’s requests to amend

       the informations were filed forty-six days later on April 5, 2016, before any trial

       date had been scheduled. Further, the original charging informations cited

       subsection (1) of Ind. Code § 35-45-5-4(a) and alleged the Appellees committed

       the offenses of promoting professional gambling based on their use of parlay

       cards for illegal football betting and wagers, and the proposed amended

       informations cited subsection (2) of the statute and alleged they committed the

       offenses by transmitting or receiving football game and point spread

       information. The original charging informations also alleged the Appellees

       committed the offense of corrupt business influence and were associated with a

       group of individuals who promoted illegal gambling through distribution,

       collection, and payments associated with parlay cards for illegal football betting

       and wagers, and the proposed amended informations alleged they were

       associated with a group of individuals who promoted illegal gambling.


[18]   Based upon the record, and in light of the fact the requests to amend were filed

       forty-six days after the original information and before any trial date had been

       scheduled, we conclude the Appellees had a reasonable opportunity to prepare

       for and defend against the charges as amended and that the trial court erred in

       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 16 of 22
       denying the State’s motions to amend the charging informations. See Blythe v.

       State, 14 N.E.3d 823, 830 (Ind. Ct. App. 2014) (holding that the defendant was

       not prejudiced by the trial court’s order granting the State’s motion to amend

       the charging information and that the defendant had a reasonable opportunity

       to prepare for and defend against the charges); Gomez v. State, 907 N.E.2d 607,

       611 (Ind. Ct. App. 2009) (holding the amended information did not prejudice

       the defendant’s substantial rights, that the time period between the amendment

       of the charging information and the jury trial was approximately ten months

       and gave the defendant the opportunity to prepare for the murder charge, and

       that the defendant could not show that he was prejudiced by the added charge

       as he had ample notice of the new charge and a significant amount of time to

       prepare a defense for the trial), trans. denied.


[19]   We review a trial court’s dismissal of a charging information for an abuse of

       discretion. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). In

       reviewing a trial court’s decision for an abuse of discretion, we reverse only

       where the decision is clearly against the logic and effect of the facts and

       circumstances. Id.


[20]   To the extent the trial court’s order dismissing the charges against the Appellees

       rested on a determination that the probable cause affidavit was defective or did

       not establish that probable cause existed to believe the Appellees committed the

       offenses of promoting professional gambling and corrupt business influence as

       alleged in the proposed amended information, we observe that Ind. Code § 35-

       34-1-4 lists eleven possible grounds for dismissing a charging information and a

       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 17 of 22
lack of probable cause is not one of those grounds.12 The Indiana Supreme

Court has held that “lack of probable cause is not grounds for dismissing a

charging information.” Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000)

(noting that the statute allowing a court to dismiss contains no provision

regarding a defective probable cause affidavit) (citing Hicks v. State, 544 N.E.2d

500, 505 (Ind. 1989) (“The lack of probable cause is not a proper ground on

which to predicate a motion to dismiss the information. The probable cause

affidavit relates to the pre-trial detention of a defendant, not the charging



12
     Ind. Code § 35-34-1-4(a) provides:

           The court may, upon motion of the defendant, dismiss the indictment or information
           upon any of the following grounds:
                    (1) The indictment or information, or any count thereof, is defective under
                    section 6 of this chapter.
                    (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in
                    counts.
                    (3) The grand jury proceeding was defective.
                    (4) The indictment or information does not state the offense with sufficient
                    certainty.
                    (5) The facts stated do not constitute an offense.
                    (6) The defendant has immunity with respect to the offense charged.
                    (7) The prosecution is barred by reason of a previous prosecution.
                    (8) The prosecution is untimely brought.
                    (9) The defendant has been denied the right to a speedy trial.
                    (10) There exists some jurisdictional impediment to conviction of the defendant
                    for the offense charged.
                    (11) Any other ground that is a basis for dismissal as a matter of law.

Also, Ind. Code § 35-34-1-8 provides in part that a motion to dismiss information under Ind. Code § 35-34-1-
4 shall be in writing, states when the court may deny the motion without conducting a hearing, states that if
the motion is based upon the existence or occurrence of facts, the motion shall be accompanied by affidavits
containing sworn allegations of these facts and that, if a hearing is necessary to resolve questions of fact, the
court shall conduct a hearing and make findings of fact essential to the determination of the motion.


Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017              Page 18 of 22
       instrument.”); Gilliam v. State, 270 Ind. 71, 383 N.E.2d 297, 303 (1978)

       (observing “[t]he probable cause affidavit is not the means by which the accused

       is charged with a crime” but “is a means of satisfying the constitutional and

       statutory requirements that the pre-trial detention of the accused to face the

       charge be based upon a determination, by a neutral and detached magistrate,

       that probable cause exists to believe that the accused committed the crime”)),

       reh’g denied; see also State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014) (noting that

       lack of probable cause is not grounds for dismissing a charging information

       against an adult offender and citing Flowers); Pond v. State, 808 N.E.2d 718, 721

       (Ind. Ct. App. 2004) (observing that lack of probable cause is not grounds for

       dismissing a charging information and citing Flowers), trans. denied; State v. King,

       502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987) (noting that the deficiency of a

       probable cause affidavit is not a ground for dismissal of the information as the

       probable cause affidavit is not the manner by which a defendant is charged with

       a crime); State v. Palmer, 496 N.E.2d 1337, 1341 (Ind. Ct. App. 1986) (holding

       that neither Indiana statute nor case law require a charging information to be

       accompanied by a probable cause affidavit unless the information is to serve as

       the basis for an arrest warrant, that the lack of probable cause is not grounds for

       dismissal, and that the trial court erred in granting a motion to dismiss for lack

       of probable cause). Thus, dismissal of the informations for lack of probable

       cause was improper.


[21]   Further, 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. State v.


       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 19 of 22
       Morgan, 60 N.E.3d 1121, 1125 (Ind. Ct. App. 2016) (citing State v. Bilbrey, 743

       N.E.2d 796, 798 (Ind. Ct. App. 2001)), trans. denied; Isaacs, 794 N.E.2d at 1122;

       King, 502 N.E.2d at 1368. “The purpose of the information is to allege facts

       sufficient in law to support a conviction and to sufficiently charge the crimes so

       that a defendant may prepare a defense and be protected against double

       jeopardy in the future.” Isaacs, 794 N.E.2d at 1122; see also King, 502 N.E.2d at

       1370. The State is not required to include detailed factual allegations in a

       charging information. Gutenstein v. State, 59 N.E.3d 984, 995 (Ind. Ct. App.

       2016), trans. denied. “Questions of fact to be decided at trial or facts constituting

       a defense are not properly raised by a motion to dismiss.” Isaacs, 794 N.E.2d at

       1122 (citing King, 502 N.E.2d at 1370). “Motions to dismiss, before trial,

       directed to the sufficiency of the evidence, are improper.” State v. Houser, 622

       N.E.2d 987, 988 (Ind. Ct. App. 1993) (citation omitted), reh’g denied, trans.

       denied; see also Bilbrey, 743 N.E.2d at 798 (noting it is improper for a trial court

       to grant a defendant’s motion to dismiss an information when it is based on the

       sufficiency of the evidence). “However, an information may be dismissed if the

       facts stated in the information do not constitute an offense.” Isaacs, 794 N.E.2d

       at 1122. “A hearing on a motion to dismiss is not a trial of the defendant on the

       offense charged.” Morgan, 60 N.E.3d at 1126 (citing Isaacs, 794 N.E.2d at 1122

       (noting that the facts permitted to be raised under Ind. Code § 35-34-1-8

       typically concern only pre-trial matters)).


[22]   The State’s proposed amended charging informations adequately alleged the

       crimes of promoting professional gambling and corrupt business influence. The

       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 20 of 22
       informations listed the statutory provisions and the date and county of the

       alleged crime of the alleged offenses. Taking the facts in the proposed amended

       informations as true, the State charged the elements of the offenses sufficiently

       to allow the Appellees the opportunity to prepare a defense. The trial court

       essentially granted the Appellees a mini-trial and ruled that there was

       insufficient evidence to charge them. A hearing on a motion to dismiss is not a

       trial on the charged offenses, Morgan, 60 N.E.3d at 1126, and a motion to

       dismiss prior to trial directed to the sufficiency of the evidence is improper.

       Houser, 622 N.E.2d at 988. Also, to the extent it is asserted that Biela engaged

       in bona fide business transactions, we note that “whether one has a statutory

       defense to the charges in an information goes beyond the issues that may be

       decided by a motion to dismiss and instead is a matter appropriately decided at

       trial.” Isaacs, 794 N.E.2d at 1122-1123.


[23]   Accordingly, we conclude that the trial court abused its discretion in granting

       the Appellees’ motions to dismiss. See Houser, 622 N.E.2d at 988 (holding that

       the charging informations clearly alleged sufficient facts to constitute the

       offenses charged, that motions to dismiss before trial directed to the sufficiency

       of the evidence are improper, and that the trial court erred in granting the

       defendants’ motions to dismiss); Bilbrey, 743 N.E.2d at 799 (holding it would be

       necessary to develop the facts of the case to determine whether the defendant

       operated a motor vehicle, that the fact the defendant denied the allegation

       stating he was operating a motor vehicle does not demonstrate as a matter of

       law that he was not operating a motor vehicle, and that the trial court erred in


       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 21 of 22
       granting the defendant’s motion to dismiss the charges against him); King, 502

       N.E.2d at 1370 (holding that the State’s informations adequately charged the

       crime of unlawfully selling fireworks, that each information listed the statutory

       provisions, the date and county of the alleged crime, and charged the

       defendants with unlawfully selling at retail fireworks to an undercover police

       officer, that the purpose of the information is to allege facts sufficient in law to

       support a conviction and to sufficiently charge the crimes so that a defendant

       may prepare a defense and be protected against double jeopardy in the future,

       that taking the facts alleged in the information as true the State had charged the

       elements of the crime sufficiently to allow the defendants the opportunity to

       prepare a defense, that whether the defendants’ alleged defense was adequate

       was a matter appropriately decided at trial, and thus that the trial court erred in

       granting the motion to dismiss).


                                                   Conclusion

[24]   For the foregoing reasons, we reverse the order of the trial court denying the

       State’s motions to amend the charging informations and dismissing the charges

       against the Appellees.


[25]   Reversed and remanded.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017   Page 22 of 22
