OPINION

CRONE, Judge.

Case Summary

A male high school girls volleyball coach gave foot rubs to and rubbed lotion on the backs of some of his players. The players' parents reported these and other activities to the school corporation's athletic director, Edward Gilliland, who documented them as "inappropriate behavior" in the coach's personnel file. The coach continued to engage in such behavior and was forced to resign in October 2008. Local law enforcement authorities conducted an investigation and eventually charged the coach with committing unspecified "sex offenses" against one of his former players, who had joined the team in August 2007. When questioned by police on November 21, 2008, Gilliland denied knowing about any "alleged misconduct" between the coach and the player.

The Indiana State Police conducted its own investigation and submitted a report to the prosecutor's office in October 2010. At a probable cause hearing in September 2011, the lead investigator testified that Gilliland knew that the coach had given foot rubs and back rubs to his players but did not testify that Gilliland knew about any sexual activity between the coach and the aforementioned player. After the hearing the State charged Gilliland with two counts of failure to report child abuse or neglect, a class B misdemeanor. The charging information alleges that between August 2007 and October 2008, Gilliland had reason to believe that the player was a victim of child abuse or neglect and failed to report it to the proper authorities; the charging information does not specify the alleged abuse or neglect that Gilliland failed to report. The charging information further alleges that Gilliland concealed his offenses, thereby tolling the two-year statute of limitations, and that the State could not have discovered sufficient evidence by exercise of due diligence to charge him before October 2010, less than one year before the charges were filed.

Gilliland filed a motion to dismiss, asserting that the prosecution was barred by the statute of limitations, that he had not engaged in concealment, and that the State had failed to exercise due diligence. At the hearing on the motion to dismiss, he also argued that the charging information failed to state facts sufficient to constitute an offense, apprise him of the charges against him, and allow him to prepare a defense. The trial court denied Gilliland's motion to dismiss but ruled that any concealment did not begin until November 21, 2008, and thus any offense committed prior to October 5, 2007, would be outside the statute of limitations. As such, the trial court gave the State an opportunity to amend the charging information accordingly.

On appeal, Gilliland renews the arguments that he made below and suggests that he had no duty to report child abuse or neglect because he had no reason to believe that the coach and the player engaged in sexual activity. We conclude that Gilliland concealed his offenses from the very beginning, thereby tolling the statute of limitations, and that the State could not have discovered sufficient evidence by exercise of due diligence to charge him prior to October 2010. Thus, we agree with the trial court that the charges were timely filed, but we conclude that any offense committed prior to October 5, 2007, would not be outside the statute of limitations and therefore the State does not have to amend the charging information in that respect.

We also conclude that the charging information and the testimony from the probable cause hearing, when taken together and accepted as true, contain facts sufficient to constitute the charged offenses because child abuse or neglect need not involve sexual activity under Indiana law. We further conclude that those facts are sufficient to apprise Gilliland of the charges against him and allow him to prepare a defense. Therefore, we affirm in part and reverse in part and remand for further proceedings.

Facts and Procedural History

The relevant evidence presented at the probable cause hearing indicates that Gilliland was the athletic director for LaPorte Community School Corporation ("the Corporation") and was stationed at LaPorte High School. Robert Ashcraft was the high school's girls "junior volleyball coach." Appellant's App. at 50. On August 1, 2007, fifteen-year-old K.T. became a member of Ashcraft's team. According to Indiana State Police Detective Michael Robinson, some of the team members' parents told Gilliland that Ashcraft had engaged in activities with team members such as "foot rubs; lotion being rubbed on backs; some textings; hanging out with the girls — specifically [K.T.] — before school, by himself." Id. at 58. Gilliland documented this behavior in Ashcraft's personnel file and in August 2007 gave "a list to Mr. Ashcraft of things that were not appropriate behavior as a coach in regards to the players." Id. at 52. Nevertheless, Ashcraft continued to engage in behavior that Gilliland and head volleyball coach Marybeth Lebo deemed "inappropriate," id. at 58 and 59, and they documented that behavior in Ashcraft's personnel file. K.T.'s name was mentioned "a couple of times" in the file. Id. at 60.

At some point, Ashcraft, who was over forty years old, committed "several sex offenses" with K.T., who turned sixteen on June 21, 2008.1 Id. at 50. The record before us does not disclose the specific nature of those offenses, which ultimately resulted in Ashcraft's prosecution and conviction.2 On October 28, 2008, Ashcraft submitted a resignation letter that had been prepared by Gilliland and Lebo; the letter indicated that Ashcraft's resignation was due to "some type of coaching problem" but did not mention the behavior documented in his personnel file. Id. at 63.

In November 2008, LaPorte City Police Department detectives interviewed Gilliland about Ashcraft's "alleged misconduct" with K.T. Id. at 54. Gilliland replied that "he had no knowledge whatsoever of — or any rumors of that being the reason why Mr. Ashcraft was terminated or resigned." Id.

In January 2010, the Indiana State Police began investigating Gilliland, Lebo, and the Corporation based on "information that came to light" during its investigation of Ashcraft that "there was a possibility that the [Corporation] and some of the employees may have known about the alleged misconduct" between Ashcraft and K.T. Id. at 50. Detective Robinson completed his report on the investigation on October 22, 2010, and submitted it to the LaPorte County prosecutor's office the next day.

A probable cause hearing was held on September 6, 2011, and later that day the State filed an information charging Gilliland with two counts of class B misdemeanor failure to report child abuse or neglect based on alleged violations of Indiana Code Sections 31-33-5-1 and 31-33-5-2.3 Indiana Code Section 31-33-5-1 states, "In addition to any other duty to report arising under this article, an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article." The terms "reason to believe" and "victim of child abuse or neglect" are defined by statute and will be addressed in greater detail below. Indiana Code Section 31-33-5-2 states,

A person who has a duty under Indiana Code Chapter 31-33-5 "to report that a child may be a victim of child abuse or neglect shall immediately make an oral report to: (1) the [Department of Child Services]; or (2) the local law enforcement agency." Ind.Code § 31-33-5-4.

Indiana Code Section 31-33-22-1 states,

The prosecution of a misdemeanor offense is barred unless it is commenced within two years after the commission of the offense. Ind.Code § 35-41-4-2(a). "The period within which a prosecution must be commenced does not include any period in which ... 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." Ind.Code § 35-41-4-2(h)(2).

Count I of the charging information against Gilliland alleges a violation of Indiana Code Section 31-33-5-1 and reads in pertinent part as follows:

Appellant's App. at 11. Count II alleges a violation of Indiana Code Section 31-33-5-2 and reads in pertinent part as follows:

Id. at 13.

On September 29, 2011, Gilliland filed a written motion to dismiss the charges on the basis that the two-year statute of limitations for prosecution of a misdemeanor began to run, at the latest, on October 28, 2008, and expired on October 28, 2010, almost a year before the charges were filed. In his motion, Gilliland further asserted that "[t]here is no evidence of concealment of the crime that would toll the statute of limitations period and, at most, within the charging Information the State alleges acts of concealment of the underlying crime of child abuse which is a charge that has not been brought against [Gilliland]." Id. at 23-24. Finally, Gilliland asserted that

Id. at 24.

On January 23, 2012, the trial court held a hearing on Gilliland's motion to dismiss.4 At the hearing, in addition to addressing the statute of limitations issues raised in his motion, Gilliland argued that the charging information was defective because it was insufficiently specific and failed to state facts constituting an offense. The State observed that Gilliland had not raised those additional arguments in his written motion to dismiss but made no formal objection and responded to them at length. Tr. at 35.5

On February 7, 2012, the trial court issued an order that reads in pertinent part as follows:

Appellant's App. at 7-10. This discretionary interlocutory appeal ensued.

Discussion and Decision

Gilliland contends that the trial court erred in denying his motion to dismiss. Our standard of review is well settled.

Estrada v. State, 969 N.E.2d 1032, 1038 (Ind.Ct.App.2012) (citations omitted), trans. denied.

We further observe that,

Delagrange v. State, 951 N.E.2d 593, 594-95 (Ind.Ct.App.2011) (citations omitted), trans. denied.

On appeal, Gilliland challenges both the sufficiency and the timeliness of the charging information. Because the timeliness issue is potentially dispositive, we address it first.

I. Statute of Limitations/Concealment/Due Diligence

Indiana Code Section 35-34-1-4(a)(8) states that, upon motion of the defendant, the court may dismiss an information if "[t]he prosecution is untimely brought." In Sloan v. State, 947 N.E.2d 917 (Ind.2011), our supreme court explained,

Id. at 920 (citations, quotation marks, and brackets omitted). "It is the State's burden to establish that the crime charged was committed within the statute of limitations." Atkins v. State, 437 N.E.2d 114, 117 (Ind.Ct.App.1982), cert. denied (1983).

As previously mentioned, the misdemeanor offenses at issue have a two-year statute of limitations. Ind.Code § 35-41-4-2(a)(2). Both offenses involve the failure to report suspected child abuse or neglect. Once a person has reason to believe that a child is a victim of child abuse or neglect, that person must "immediately" make a report to the proper authorities. Ind.Code §§ 31-33-5-2(a),6 31-33-5-4. Gilliland contends that "[t]he statute of limitations for prosecuting `failure to report child abuse or neglect' begins to run when the person charged with the offense fails to `immediately' report abuse or neglect." Appellant's Br. at 15 (quoting Ind.Code §§ 31-33-22-1 and 31-33-5-4). According to Gilliland, "the statute of limitations began to run, at the latest, on October 28, 2008. Thus, the State was required to file the charging Informations no later than October 28, 2010." Id. at 15-16.

The State characterizes failure to report child abuse or neglect as a continuing offense, arguing that "`immediately' defines when the duty to report arises, not when a violation of that duty terminates." Appellee's Br. at 19. The State points out that "[t]he Indiana Code avoids setting any time limit on an individual's duty to report child abuse or neglect" and that a person is relieved of that duty only if "`a report has already been made to the best of the individual's belief.'" Id. at 19, 20 (quoting Ind.Code § 31-33-5-3). Absent any evidence of such belief on Gilliland's part, says the State, "his offense continued until the filing of the information because he had not reported Ashcraft's conduct." Id. at 22.7

We need not decide whether failure to report child abuse or neglect is a continuing offense because, even assuming that Gilliland committed his offenses as early as August 1, 2007, his concealment of them tolled the statute of limitations from that date until October 23, 2010, at the earliest. To reiterate, Indiana Code Section 35-41-4-2(h) states in pertinent part, "The period within which a prosecution must be commenced does not include any period in which ... 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." Ind.Code § 35-41-4-2(h)(2). Gilliland's duty to report child abuse or neglect allegedly arose sometime between August 1, 2007, when K.T. joined the volleyball team, and October 28, 2008, when Ashcraft resigned from the team.8 Gilliland never made a report and thereby concealed the fact that he had reason to believe that K.T. was a victim of child abuse or neglect and thus had a duty to report that abuse or neglect.

Gilliland asserts that concealment "must be a positive act performed by the defendant calculated to prevent discovery of the fact that a crime has been committed." Appellant's Br. at 18 (citing Kifer v. State, 740 N.E.2d 586, 588 (Ind.Ct.App.2000)). Assuming that Kifer remains good law on this point, we conclude that Gilliland performed a positive act of concealment calculated to prevent discovery of the fact that a crime had been committed by remaining silent when he had a legal duty to speak.9 The trial court concluded that Gilliland did not engage in concealment until November 21, 2008, when he told detectives that he had no knowledge of any "alleged misconduct" between Ashcraft and K.T. Appellant's App. at 54. This overlooks the fact that Gilliland had a duty to report child abuse or neglect immediately after he had reason to believe that it occurred and failed to do so.

Based on the foregoing, we conclude that Gilliland concealed evidence of his alleged offenses from the very beginning and that evidence sufficient to charge him with those offenses was unknown to the LaPorte County prosecutor's office until it received the Indiana State Police report on October 23, 2010, at the earliest.10 Gilliland does not contend that the prosecutor could have discovered that evidence any earlier by exercise of due diligence. As such, the two-year statute of limitations did not start running until that date, at the earliest. The State charged Gilliland on September 6, 2011, well before the statute of limitations expired. Thus, we conclude that the trial court did not abuse its discretion in denying Gilliland's motion to dismiss the charges as untimely. That said, we respectfully disagree with the trial court's determination that any offense alleged prior to October 5, 2007, would be outside the statute of limitations, and therefore we reverse the trial court's ruling on that point and hold that the State need not amend the charging information in that respect.

II. Sufficiency of Charging Information

Having determined that the charges were timely filed, we now turn to Gilliland's arguments regarding the sufficiency of the charging information. The State argues that Gilliland has waived these arguments by failing to include them in his written motion to dismiss and raising them for the first time orally at the dismissal hearing. See Appellee's Br. at 6-7 (citing Ind.Code § 35-34-1-8, which states, "A motion to dismiss an indictment or information under section 4 of this chapter shall be in writing."). We agree with Gilliland that the State has waived its waiver argument by failing to object to his sufficiency arguments at the dismissal hearing. See Hoemig v. State, 522 N.E.2d 392, 400-01 (Ind.Ct.App.1988) ("The failure to raise a timely and specific objection at trial constitutes a waiver of any error on appeal."). Therefore, we address the merits of Gilliland's arguments regarding the sufficiency of the charging information.

"The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense." State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct.App.2010), trans. denied (2011). Indiana Code Section 35-34-1-2(a) states in pertinent part that a charging information must be in writing and allege the commission of an offense by:

"The State is not required to include detailed factual allegations in a charging information." Laney v. State, 868 N.E.2d 561, 567 (Ind.Ct.App.2007), trans. denied. "An information that enables an accused, the court, and the jury to determine the crime for which conviction is sought satisfies due process. Errors in the information are fatal only if they mislead the defendant or fail to give him notice of the charge filed against him." Dickenson v. State, 835 N.E.2d 542, 550 (Ind.Ct.App.2005) (citations and quotation marks omitted), trans. denied. "[W]here a charging instrument may lack appropriate factual detail, additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him." Laker, 939 N.E.2d at 1113. The probable cause affidavit is not in the record before us, and therefore we follow the trial court's and the parties' lead in considering the testimony from the probable cause hearing.

To provide some context for Gilliland's sufficiency arguments, we first review the statutory definitions relevant to whether he had a reason to believe that K.T. was the victim of child abuse or neglect. For purposes of Indiana Code Article 31-33, "reason to believe" is defined as "evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected." Ind.Code § 31-9-2-101. The definition of "victim of child abuse or neglect" is considerably more complex. Indiana Code Section 31-9-2-133 provides in pertinent part,

Of relevance here is paragraph (a)(1) of the statute, which pertains to a child described in Indiana Code Sections 31-34-1-1 through 31-34-1-5, which describe various circumstances under which a child is a child in need of services ("CHINS"). Indiana Code Section 31-34-1-3(a) says,

A child is a child in need of services if, before the child becomes eighteen (18) years of age:

Gilliland's overarching contention is that the facts alleged in the charging information and the testimony from the probable cause hearing, "even when taken together and accepted as true, woefully fail to establish" that he had reason to believe that K.T. was a victim of child abuse or neglect. Appellant's Br. at 12. More specifically, Gilliland contends that

Id.

Contrary to Gilliland's suggestion, knowledge of a "sexual relationship" between Ashcraft and K.T. was not required to trigger his duty to report child abuse or neglect.13 An adult may commit either sexual misconduct with a minor or child seduction by fondling or touching a child (between fourteen and fifteen or sixteen and seventeen years old, respectively) with the intent to arouse or satisfy the sexual desires of either the child or the adult. See Ind.Code §§ 35-42-4-9, 35-42-4-7.14 Moreover, contrary to Gilliland's suggestion, those statutes do not require the fondling or touching of a sexual organ.15 Based on the foregoing, we conclude that the charging information and the testimony from the probable cause hearing, when taken together and accepted as true, contain facts sufficient to constitute the charged offenses as well as to apprise Gilliland of the charges against him and allow him to prepare a defense. It is for a jury to determine whether Gilliland had reason to believe that K.T. was a victim of child abuse or neglect based on his knowledge that Ashcraft had given foot rubs to K.T. and rubbed lotion on her back.

Gilliland also argues that the charging information fails "to properly allege acts of concealment," Appellant's Br. at 18, but in light of the preceding analysis regarding both concealment and sufficiency, we disagree. In sum, then, we affirm the trial court's denial of Gilliland's motion to dismiss the charging information, but the State need not amend the information to omit any offense alleged prior to October 5, 2007. Accordingly, we affirm in part and reverse in part and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

RILEY, J., concurs.

BAILEY, J., concurs in part and dissents in part with separate opinion.

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

I concur in part and dissent in part. In concluding that Gilliland was timely prosecuted, the majority describes Gilliland's "positive act of concealment calculated to prevent discovery of the fact that a crime had been committed" as "remaining silent when he had a legal duty to speak." Op. at 1059. I believe that, if Gilliland lied to officers on November 21, 2008, he committed a positive act, concealing Ashcraft's crime and thus his own offense of failure to report.16 However, I disagree with the majority opinion to the extent that it suggests concealment might arise from remaining silent about one's own crime, without more.

The majority reasoning effectively converts the legislatively-enacted two-year statute of limitations applicable to misdemeanor offenses into a non-existent provision where the misdemeanor offense is one of silence. It is not possible to discern the silence constituting the underlying offense from the silence covering the offense.

I must first observe that silence does not constitute overt efforts by Gilliland to avoid his own apprehension, the ordinary and usual objective of the tolling provision. Also, I find it logically untenable that an individual charged with a crime of silence has "concealed" his own crime by continuing his silence. Finally, penalizing an individual for maintaining silence of one's own crime would have Constitutional implications.

Appellate courts must "avoid invading the province of the legislature" and will strictly interpret the language of Indiana Code section 35-41-4-2(h)(2), even if the result is that tolling could continue indefinitely, "a result that seems at odds with the purposes underlying statutes of limitations." Sloan v. State, 947 N.E.2d 917, 923 (Ind.2011). Nonetheless, "public policy and a strict reading of the statute favor the prosecution of alleged crimes over the protection of defendants who have intimidated victims or otherwise concealed evidence." Id.

"Courts will still need to determine whether concealment exists in the first place. But once concealment is established, the statute of limitations ceases to run until authorities know or should have known sufficient evidence to charge the person with the crime. Id. The tolling statute uses the language "conceals evidence of the offense;" thus, it is arguable that the language of the last statutory revision 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. at 922, n. 8.

Indiana Code section 35-41-4-2(h)(2) provides that "the period within which a prosecution must be commenced does not include any period in which: ... the accused person conceals evidence of the offense, and evidence sufficient to charge the person with that offense is unknown to the prosecuting authority[.]" In other words, the tolling statute is directed toward a person's concealment of his own crime, not another person's crime. For example, in Sloan, the accused tolled the statute of limitations by intimidating his victim through threats of jail. 947 N.E.2d at 921. See also Crider v. State, 531 N.E.2d 1151, 1154 (Ind.1988) (defendant had committed positive acts of intimidation that amounted to concealment). I cannot interpret Gilliland's continued silence to be an attempt to avoid his own apprehension for his earlier silence. If he lied in 2008 and knowingly covered for the crime of another, a False Reporting or Obstruction of Justice charge may have been in order.

Additionally, it would be extremely problematic to determine at what point silence becomes not merely silence that is criminalized as failure to report but silence that is "concealing" silence. Indiana Code section 31-33-5-1, the statute that imposes the general duty to report child abuse, provides that "an individual who has reason to believe that a child is a victim of child abuse or neglect shall make a report as required by this article," and Indiana Code section 31-33-5-4 prescribes that the report must be made "immediately." Thus, one who does not "immediately" report in accordance with the general reporting statute has committed an offense of omission at the time he acquires reason to believe the abuse or neglect exists.

Here, silence is an element of the charged offenses; at what point would sustained silence evolve into separate conduct? Does the failure to speak become "concealment" one moment, one day, one year after the individual first kept silent in the face of "reason to believe" abuse or neglect occurred? Moreover, once the individual possessing such "reason to believe" has remained silent, he has committed a crime and there are constitutional implications. He is entitled, under the Fifth Amendment to the United States Constitution, to avoid self-incrimination and remain silent regarding his earlier omission without fear of reprisal.

For these reasons, I cannot agree that mere silence becomes "concealment." However, if Gilliland lied to police, such could constitute concealment.

Nor am I persuaded that the failure to report is a continuing offense such that no statute of limitations applies. Even violent crimes, not including murder, are subject to statutes of limitations; this is a misdemeanor offense to which the misdemeanor statute of limitations should apply. Otherwise, the State — at the unfettered discretion of the prosecutor — may take a heavy-handed approach to coerce evidence from individuals who did not commit affirmative acts of abuse or neglect but may have misconstrued the actions of others. The threat of prosecution could be looming over the head of a non-reporting person years after those who commit affirmative acts are afforded relief by statutes of limitations.

In my view, the trial court properly denied Gilliland's motion to dismiss while concluding that concealment did not occur until the affirmative statement of November 21, 2008. Thus, I agree with the majority's decision to affirm the trial court's denial of the motion to dismiss the charging information, but I dissent from the instruction that the State need not amend the information. I agree that the State alleged facts sufficient to constitute the charged offenses.