Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res                          Mar 22 2013, 9:33 am
judicata, collateral estoppel, or the law
of the case.




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

ROBERT W. GEVERS, II                              GREGORY F. ZOELLER
Fort Wayne, Indiana                               Attorney General of Indiana

                                                  MONICA PREKOPA TALBOT
                                                  ERIC P. BABBS
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

THOMAS ALBERT OVERTON,                            )
                                                  )
        Appellant-Defendant,                      )
                                                  )
               vs.                                )      No. 35A02-1206-CR-530
                                                  )
STATE OF INDIANA,                                 )
                                                  )
        Appellee-Plaintiff.                       )


                     APPEAL FROM THE HUNTINGTON CIRCUIT COURT
                             The Honorable Thomas Hakes, Judge
                                Cause No. 35C01-1105-FA-91


                                        March 22, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION
BARNES, Judge
                                        Case Summary

       Thomas Overton appeals his conviction for Class C felony child molesting. We

affirm.1

                                              Issue

       Overton raises one issue, which we restate as whether his conviction for Class C

felony child molesting was barred by the statute of limitations.

                                              Facts

       T.I. was born in 1994. In December 2001, T.I. and his family moved into his

uncle’s house in Huntington County after their house caught on fire. They lived there

until the summer of 2003. Overton was their neighbor during that time.

       T.I. often helped Overton with yard work, helped gather eggs, and helped care for

Overton’s horse. Overton would let T.I. ride his horse and had bonfires for the children.

One day in 2002 or 2003, T.I. mowed Overton’s yard and went into Overton’s house to

get paid for the mowing. Once inside the house, Overton pulled out a knife, grabbed T.I.,

and told T.I. to go upstairs. Overton told T.I. that, if he screamed, Overton would use the

knife. When they were upstairs in a bedroom, Overton told T.I. to take his clothes off

and go over to the bed, and T.I. complied. Overton then removed his own pants and

underwear. Overton put the knife down and told T.I. that the knife “had [T.I.’s] name all

over it,” and that if T.I. thought he “was going to fight” the knife had his “name written

all over it too.” Tr. p. 100.

1
 We heard oral argument on February 25, 2013, in South Bend. We thank Indiana University South Bend
for its hospitality and thank counsel for their advocacy.
                                                2
       Overton made T.I. touch Overton’s penis. Overton then pushed T.I. onto the bed

and started touching T.I.’s penis. Suddenly, Overton got mad, pushed T.I. away, and told

T.I. to get out. Overton said if T.I. “told anybody that [he] wouldn’t graduate.” Id. at

102. T.I. got his clothes, left, and went home. T.I. did not tell his parents or anyone else

about the incident. Later, while T.I. and his brother were visiting Overton, T.I’s brother

saw photos of naked men on the kitchen counter and told their mother. She refused to

allow the children to go to Overton’s house anymore.

       In March 2011, Bobbi Lamb, an employee with the Department of Child Services,

and Detective Matt Collins with the Indiana State Police were part of a Body Safe

Program presented at T.I.’s school. After the presentation, sixteen-year-old T.I. indicated

that he wanted to speak with someone. He spoke with Lamb and Collins about the

incident with Overton.

       On May 16, 2011, the State charged Overton with Class A felony child molesting

and alleged that, between March 1, 2002, and August 31, 2003, Overton “performed or

submitted to fondling or touching of a child or himself with the intent to arouse or satisfy

his own sexual desires or the sexual desires of the child when the child was under

fourteen years of age.” Id. at 302. The charge was elevated from a Class C felony to a

Class A felony because it was alleged to have been committed by using or threatening the

use of deadly force or while armed with a deadly weapon.

       After a bench trial, the trial court found Overton guilty only of Class C felony

child molesting. The trial court sentenced Overton to six years with two years suspended

to probation. Overton filed a motion to correct error, arguing that the trial court could not

                                             3
find him guilty of a Class C felony because the statute of limitations for that offense had

run before the State filed charges. The State argued that the statute of limitations was

tolled by Overton’s concealment of the offense through his threats to T.I. The trial court

denied Overton’s motion to correct error, and Overton now appeals.

                                         Analysis

       Overton argues that his conviction for a Class C felony was barred by the statute

of limitations. “For misdemeanors and most classes of felonies, Indiana has enacted

statutes of limitations, which permit the commencement of criminal proceedings against

defendants only within a fixed period of time from the commission of a crime.” Sloan v.

State, 947 N.E.2d 917, 920 (Ind. 2011). The primary purpose of these statutes is “to

protect defendants from the prejudice that a delay in prosecution could bring, such as

fading memories and stale evidence.” Id. The statutes also “ʻstrike[ ] 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)). It is the State’s burden to establish that the crime charged was

committed within the statute of limitations. Lamb v. State, 699 N.E.2d 708, 709 (Ind. Ct.

App. 1998), trans. denied.

       The Class A felony child molesting charge against Overton raised no statute of

limitations issue because “prosecution for a Class A felony may be commenced at any

time.” Ind. Code § 35-41-4-2(c). However, there is a different statute of limitations for a

Class C felony. Indiana Code Section 35-41-4-2(a) provides: “Except as otherwise

provided in this section, a prosecution for an offense is barred unless it is commenced . . .

                                             4
within five (5) years after the commission of the offense, in the case of a . . . Class C . . .

felony . . . .” The offense here was alleged to have occurred between March 1, 2002, and

August 31, 2003, but the prosecution was not commenced until May 16, 2011, well

outside of the five-year statute of limitations.

       The State does not dispute that prosecution commenced more than five years after

the molestation. However, the State argues that the statute of limitations was tolled by

Indiana Code Section 35-41-4-2(h), which 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;

Our supreme court recently addressed the language of Indiana Code Section 35-41-4-

2(h)(2) and concluded that it is “free of ambiguity.”      Sloan, 947 N.E.2d at 922. “The

tolling provision affords a bright-line rule: once concealment has been found, tolling ends

when evidence sufficient to charge the defendant becomes known to the prosecuting

authority if that authority could not have discovered the evidence by the exercise of due

diligence.” Id. (footnote omitted).




                                               5
        The issue here is whether Overton “concealed evidence of the offense.”2 I.C. § 35-

41-4-2(h)(2). There is no dispute regarding the timeliness with which the State brought

the charges after T.I. informed the police and DCS of the incident. The State explains

that, because Overton took affirmative acts to conceal evidence of the offense—namely,

telling T.I. that he would not graduate if he told anyone about the molestation—the

statute of limitations was tolled until T.I. disclosed the abuse to the authorities in 2011.

        Indiana courts have considered whether defendants concealed evidence under

similar situations.3 For example, in Crider v. State, 531 N.E.2d 1151, 1154 (Ind. 1988), a

child molesting victim and her sister testified that they did not tell anyone of the repeated

attacks upon them by their father because he threatened to “put them in the hospital” if

they told anyone. The defendant told the victim’s sister that she would “never see the

light of day” if she did not cooperate with him. Crider, 531 N.E.2d at 1154. Our

supreme court concluded that the defendant “successfully concealed the fact of his crimes




2
  Our supreme court noted in Sloan that some courts have analyzed concealment with the wrong standard
by holding: “To constitute concealment of evidence of the offense sufficient to toll the statute of
limitations, there must be a positive act performed by the defendant calculated to prevent discovery of the
fact that a crime has been committed.” Sloan, 947 N.E.2d at 922 n.8 (citing Sipe v. State, 797 N.E.2d
336, 340 (Ind. Ct. App. 2003)) (emphasis added). Indiana Code Section 35-41-4-2(h)(2) uses the
language “conceals evidence of the offense,” which is seemingly broader than its predecessor’s language,
“conceals the fact that the offense has been committed.” Id. (citing I.C. § 35-1-3-5, which was repealed by
Pub. L 148-1967, § 28, eff. Oct. 1, 1977). The court noted that “[i]t is arguable that the new language
applies to concealment of any evidence, including evidence of guilt, and thus would toll the statute of
limitations in any crime in which a defendant tries to avoid apprehension.” Id. However, because
concealment was not an issue in Sloan, the court left this question for another day. Id.
3
 Sloan also involved a statute of limitations issue for a child molesting charge. However, the defendant
conceded that he committed affirmative acts of concealment through his intimidation of the victim.
Sloan, 947 N.E.2d at 921. The issue in Sloan was when the tolling of the statute of limitations ended.


                                                    6
by his positive acts of intimidation of his victims; thus, the statute of limitations did not

run until the victim made her disclosure to authorities.” Id.

       In Sipe v. State, 797 N.E.2d 336, 340 (Ind. Ct. App. 2003), disapproved of on

other grounds by Sloan v. State, 947 N.E.2d 917 (Ind. 2011), a child molesting victim

testified that the defendant told her that she would lose her sisters, that she would not be

able to see them anymore, and that they would have to go into foster homes. When she

got older, he would get more violent and threaten her physically. We concluded that the

defendant “successfully concealed his crimes by his positive acts of intimidation” of the

victim and that the statute of limitations did not begin to run until the victim made her

disclosure to the authorities. Sipe, 797 N.E.2d at 340.

       To show concealment here, the State relies on T.I.’s testimony that, after Overton

told T.I. to get out, Overton said that if T.I. “told anybody that [he] wouldn’t graduate.”

Tr. p. 102. Overton argues that this threat was not proven beyond a reasonable doubt as

evidenced by the trial court’s entry of conviction as a Class C felony rather than a Class

A felony.    The offense was charged as a Class A felony because it was allegedly

committed by using or threatening the use of deadly force or while armed with a deadly

weapon. See I.C. § 35-42-4-3(b). However, the trial court entered the conviction as a

Class C felony, indicating that the trial court did not find beyond a reasonable doubt that

the offense was committed by using or threatening the use of deadly force or while armed

with a deadly weapon.

       Our supreme court has held that, in the context of a child molesting charge, “the

threat must facilitate the offense, not its coverup.” Spurlock v. State, 675 N.E.2d 312,

                                             7
316 (Ind. 1996).        The threat that T.I. “wouldn’t graduate” if he told anyone was

communicated after the offense was complete and could not have facilitated the offense.

Tr. p. 102. Rather, the threat facilitated the coverup. As such, that particular threat could

not have been used by the trial court to support a finding that the offense was committed

by using or threatening the use of deadly force to sustain a Class A felony conviction.

The threat, however, could have been used to support a finding that the statute of

limitations was tolled by concealing evidence of the offense.4 We conclude that the

statute of limitations did not begin to run until T.I. made his disclosure to the authorities.

Thus, the trial court properly denied Overton’s motion to correct error.

                                              Conclusion

        Overton’s conviction for Class C felony child molesting was not barred by the

statute of limitations, and the trial court properly denied Overton’s motion to correct

error. We affirm.

        Affirmed.

VAIDIK, J., and CRONE, J., concur.




4
  At the oral argument, the State asserted that it was only required to show that the statute of limitations
was tolled by concealment by a preponderance of the evidence. Overton argued that the State’s burden of
proof was a beyond a reasonable doubt standard. We have held that “it is incumbent upon the State to
establish that the crime charged was committed within the statute of limitations.” Bennett v. State, 167
Ind. App. 227, 229, 338 N.E.2d 294, 296 (1975). In Bennett, we also held that “sufficient evidence of
probative value existed from which the trier of fact could determine beyond a reasonable doubt that the
prosecution of this cause was commenced well within the five year statutory period,” which implies that
the burden of proof is beyond a reasonable doubt. Id. at 230, 338 N.E.2d at 296. However, regardless of
whether the beyond a reasonable doubt standard or the preponderance of the evidence standard is
applicable, we conclude that the State has met its burden.
                                                     8
