                                                          FILED
FOR PUBLICATION
                                                        Dec 27 2012, 8:53 am


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




ATTORNEYS FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JACKIE M. BENNETT, JR.                         GREGORY F. ZOELLER
MICHELE L. RICHEY                              Attorney General of Indiana
Taft Stettinius & Hollister, LLP
Indianapolis, Indiana                          JODI KATHRYN STEIN
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MEDEA WOODS,                                   )
                                               )
       Appellant-Defendant,                    )
                                               )
               vs.                             )       No. 39A05-1204-CR-189
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


         INTERLOCUTORY APPEAL FROM THE JEFFERSON CIRCUIT COURT
                       The Honorable Ted R. Todd, Judge
                        Cause No. 39C01-1102-FC-110


                                   December 27, 2012

                              OPINION - FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Medea Woods appeals the trial court’s denial of her partial motion to dismiss. She

contends that some of the charged crimes for health-care billing fraud fall outside of the

statute of limitations, the State fails to provide sufficient facts in the charging information

to allege the concealment exception, and the crimes do not constitute a continuing wrong.

Because this is an interlocutory appeal from a motion to dismiss, the State must only

allege sufficient facts in the charging information that the charged crimes were

committed within the statute of limitations. However, we disagree with Reeves v. State,

938 N.E.2d 10, 15-16 (Ind. Ct. App. 2010), reh’g denied, trans. denied, and hold that the

probable-cause affidavit can be considered in addition to the charging information to

determine whether the State has alleged sufficient facts to place the charged crimes

within the statute of limitations. We find that the State has alleged sufficient facts when

the charging information and probable-cause affidavit are considered together and

therefore affirm.

                              Facts and Procedural History

       Woods is a licensed clinical psychologist who was a Medicaid provider in Indiana

between 2002 and 2007. The Medicaid provider agreement required Woods to maintain

records to support the claims she filed and to make those records available for review and

audit. Appellant’s App. p. 14-15. It also required Woods to return any erroneous

payment she received within fifteen days. State’s Ex. 1. In order to bill Medicaid for

payment, Woods had to follow the State’s procedures for submitting claims, including

using Recipient Identification Numbers and procedure codes to bill for services rendered.

                                              2
Appellant’s App. p. 15. Submitted claims were presumed valid unless it was shown

otherwise. Tr. p. 57-58.

      In March 2006, the government’s Medicaid billing auditor, Health Care Excel,

began investigating Woods’s submissions due to “an unusually high level of billing

compared to other mental health care providers in her area.” Appellant’s App. p. 15. An

onsite audit of Woods’s files was conducted in May 2006, and Woods was unable to

produce fifteen of the forty-one files requested for review. Health Care Excel found

several billing concerns and violations, and as a result, Woods was put on pre-payment

review, meaning that Woods’s claims were subject to heightened scrutiny before

payment. Id. at 16.

      In August 2006, the audit information was given to the Indiana Medicaid Fraud

Control Unit, and the case was assigned to Investigator Diane Hedges.            Hedges

conducted her own investigation by reviewing Woods’s billing submissions and

interviewing patients and/or their parent or guardian as well as Woods herself. After her

investigation, Hedges concluded that Woods had fraudulently billed Medicaid by

submitting illegitimate claims along with legitimate claims using her patients’ Recipient

Identification Numbers from 2002 to 2007.

      On March 17, 2007, Woods voluntarily terminated her Medicaid provider

agreement with the State. Later in 2007, she moved to Wyoming. Meanwhile, Hedges’s

investigation continued, and in December 2007, she contacted the Office of the Inspector

General, which joined her in the on-going investigation. On August 1, 2008, Hedges

presented her case to the United States Attorney’s Office for review of possible criminal

                                            3
charges. In March 2009, Hedges found Woods in Rawlins, Wyoming, and she and

Special Agent Shelia Green interviewed Woods, who said that she had been under

financial pressure and had a “readiness to make a mistake” in her favor when she

submitted her Medicaid claims. Tr. p. 23. Hedges completed her investigation in May

2008, and the calculated value of loss was determined to be in excess of $350,000.

       On November 9, 2009, a federal grand jury indicted Woods with health-care fraud

for the fraudulent Medicaid claims she submitted between 2002 and 2007. The federal

charges were dismissed on July 12, 2010. The State filed its own charges against Woods

on February 9, 2011, for several counts of health-care billing fraud for the same activity

between 2002 and 2007. Woods moved for a partial dismissal of the charges on the basis

that any charged activities before February 9, 2006, were barred by the five-year statute

of limitations. Following a hearing, the trial court denied the motion. Woods asked the

trial court to certify its order on the partial motion to dismiss for interlocutory appeal,

which the trial court granted. This Court accepted jurisdiction over the interlocutory

appeal on May 18, 2012.

                                Discussion and Decision

       Woods contends that the trial court erred by denying her partial motion to dismiss

the charges against her because: (1) the information and probable-cause affidavit failed to

provide sufficient information to allow the application of the concealment exception; (2)

the charges based on activities before February 9, 2006, are time-barred under the five-

year statute of limitations; and (3) the offenses charged constitute discrete, individual

claims instead of a continuing wrong. Because this is an interlocutory appeal of a motion

                                            4
to dismiss, however, we review only the first issue. 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. Reeves v. State, 938

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

        When reviewing a trial court’s ruling on a motion to dismiss, we use an abuse of

discretion standard.1 Id. at 14. We will only reverse if the trial court’s decision is clearly

against the logic and effect of the facts and circumstances. Id. Indiana Code section 35-

41-4-2(h)(2) allows tolling of the statute of limitations to serve “the State’s interest of

ensuring that it can later prosecute a criminal suspect even if, for a time, he conceals

evidence of the offense such that authorities are unaware and unable to determine that a

crime has been committed.” Id. at 17 (quoting Kifer v. State, 740 N.E.2d 586, 588 (Ind.

Ct. App. 2000) (quotation omitted)). As this Court explicitly held in Reeves, the State

must “plead the circumstances of the concealment exception in the charging

information,” id. at 17 (emphasis added), and that pleading must contain sufficient facts

so that the “defendant is apprised of the facts upon which the State intends to rely on and

may be prepared to meet that proof at trial.”2 Willner v. State, 602 N.E.2d 507, 509 (Ind.


        1
           Woods argues that we should use a de novo standard of review because this is a case of
statutory interpretation. Appellant’s Br. p. 5. However, we review a motion to dismiss a criminal charge
under the statute of limitations for an abuse of discretion. State v. Lindsay, 862 N.E.2d 314, 317 (Ind. Ct.
App. 2007), trans. denied. Further, Woods does not make a statutory interpretation argument; rather, she
argues that the facts do not support the concealment exception. But, even if we were to use the de novo
standard of review, the outcome would be the same.
        2
         We recognize that our Supreme Court has noted that the “evidence of the offense” language of
the concealment exception articulated at Indiana Code section 35-41-4-2(h)(2) may apply 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.” Sloan v. State, 947 N.E.2d 917, 922 n.8
                                                     5
1992). Additionally, the charging 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.” Ind. Code § 35-34-1-2(a)(5).

        Our Supreme Court examined a related charging information requirement in a

similar context when determining whether the charging information sufficiently stated the

alleged offense in Patterson v. State, 495 N.E.2d 714, 719 (Ind. 1986). Indiana Code

section 35-34-1-2(a)(4) states that the charging information must “set[] forth the nature

and elements of the offense charged in plain and concise language without unnecessary

repetition.” In Patterson, the charging information alleging murder did not set forth the

manner of death, rendering it insufficient under Subsection (a)(4). Our Supreme Court

held, however, that while the charging information did not contain sufficient factual

detail of the alleged offense, the probable-cause affidavit that supported the charging

information did contain the necessary details to apprise Patterson of the charges against

her. Since Patterson was made aware of the charges against her by virtue of the two

documents viewed together, her substantial rights were not prejudiced by the deficiency

in the charging information. Patterson, 495 N.E.2d at 719.

        Indiana Code section 35-34-1-2 as a whole sets forth the required contents of the

charging information, the overarching purpose of which is to give the defendant

particular notice of the crimes with which she is charged during the applicable statute of

limitations period so that she can prepare an appropriate defense. See Bei Bei Shuai v.


(Ind. 2011). However, we agree with the holding in Kifer, 740 N.E.2d at 588-89, that interpreting
“evidence of the offense” to include any evidence, including evidence of guilt, would allow the exception
to swallow the rule, tolling the statute of limitations in “nearly all crimes in which a defendant attempts to
avoid apprehension.” Id. at 589.
                                                      6
State, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012), trans. denied; Reeves, 938 N.E.2d at 16.

If the probable-cause affidavit can be used to supplement the charging information in

Patterson where the offense was not alleged with sufficient detail – charging information

is insufficient under Indiana Code section 35-34-1-2(a)(4) – we see no reason why the

same cannot be true in a case where the concealment exception has not been alleged with

sufficient detail to place the charged crimes within the applicable statute of limitations –

charging information is insufficient under Indiana Code section 35-34-1-2(a)(5). As long

as the defendant is given enough information and notice to prepare an appropriate

defense and does not have any of her substantial rights prejudiced, we see no reason why

the probable-cause affidavit should not be considered in the analysis.

       Since the charging information and probable-cause affidavit are filed together,

they should be viewed in tandem to determine if they satisfy the goal of putting the

defendant on notice of the crimes with which she is charged during the applicable statute

of limitations period so that she can prepare an appropriate defense.         We therefore

disagree with the holding in Reeves that we must look only to the charging information in

this case, as that would hinder the true intent behind charging informations, Indiana Code

section 35-34-1-2, and Patterson.

       Here, the charging information and probable-cause affidavit taken together

provided both sufficient facts to allege concealment and apprise Woods that the State was

going to argue that theory at trial. The charging information alleges that Woods “did

knowingly or intentionally conceal information, to wit: that not all services claimed for

her Medicaid patients were actually rendered,” and “did knowingly or intentionally use

                                             7
the identifying information, to wit: the Medicaid Recipient Identification Number

(“RID”) of many of her Medicaid patients, without their consent, with the intent to harm

or defraud another person.” Appellant’s App. p. 12. Additionally, the probable-cause

affidavit gave further detail as to how Woods filed fraudulent claims; specifically, that

Woods filed illegitimate claims along with legitimate claims for many patients using their

unique RID numbers. Id. at 15, 17-18. In particular, the State’s claim is that Woods

concealed her crime by hiding illegitimate Medicaid claims within a sea of legitimate

claims, using patients’ RID numbers on the illegitimate claims to make it appear that

those claims were also legitimate.

       Further, the probable-cause affidavit indicated that the evidence that Woods was

submitting fraudulent claims was not known until March 2006 when Health Care Excel

conducted an audit of her practice due to unusually high billing levels. Id. at 15. Since

February 9, 2011, when the charges were filed, is within five years of March 2006, these

facts are sufficient to allege concealment and that the crimes charged were committed

within the applicable statute of limitations.

       We find that when viewing the charging information and probable-cause affidavit

together, the State has sufficiently alleged concealment to put Woods on notice that the

State will argue that theory at trial. Proving concealment and therefore that the crimes

charged fell within the applicable statute of limitations are questions that the State has the

burden of proving at trial, not at this point of the proceedings. We therefore affirm the

trial court’s denial of Woods’s partial motion to dismiss.




                                                8
     Affirmed.

MATHIAS, J., and BARNES, J., concur




                                      9
