OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

Vaughn A. Reeves, Jr. ("Reeves") appeals the trial court's interlocutory order denying his motion to dismiss ten counts of class C felony aiding, inducing, or causing securities fraud.

We affirm in part, reverse in part, and remand with instructions.

FACTS

Some of the facts of this case have already been set forth in Reeves' prior appeal from the denial of his motion for reduction of bail as follows:

Reeves v. State, 923 N.E.2d 418, 419 (Ind. Ct.App.2010) (citations to Appendix omitted).

On June 30, 2009, the State charged Reeves with ten counts of class C felony aiding, inducing, or causing securities fraud.1 The charging information for each count alleged that Reeves, "on or about or between September 2000 and July 2005[,]" did "knowingly or intentionally aid, induce or cause another person" to commit "Securities Fraud ... in connection with the offer, sale or purchase of a security, directly or indirectly, engage in an act, practice or course of business" by "remov[ing] funds from the repayment and/or proceeds account" of ten different Alanar bond issue numbers.2 (App.18-27).

The probable cause affidavit3 attached to the charging informations acknowledged the five-year statute of limitation for a class C felony but invoked the concealment of evidence exception in Indiana Code section 35-41-4-2(h)(2) to explain why the general bar against the prosecution of a felony five years after its commission did not apply to the charges against Reeves. Specifically, the probable cause affidavit provided:

(App.30-31).

On August 28, 2009, Reeves filed a motion to dismiss, arguing that any class C felony offense that would have been committed by Reeves prior to June 30, 2004, "a period that ma[d]e up over 80% of the timeframe cited in the information," would be barred by the five-year statute of limitation.4 (App.83). In the State's response to the motion to dismiss, it argued that the five-year statute of limitation was tolled by the concealment of evidence exception in Indiana Code section 35-41-4-2(h)(2).

On March 5, 2010, the trial court held a hearing on Reeves' motion to dismiss. During the hearing, Reeves presented testimony from James Hinkle, who formerly worked in the Criminal Investigation Division of the United States Treasury Department Internal Revenue Service. Hinkle reviewed the approximately 24,000 pages of documents that Reeves had received from the State as part of discovery and compiled a timeline from some of those documents that indicated that the State had knowledge of potential wrongdoing by Alanar much earlier than June 2009 when the charging informations were filed. Reeves introduced the timeline and these supporting discovery documents into evidence. Reeves argued that this evidence—which included a letter from the Indiana Securities Division regarding an August 2001 complaint by an Alanar bondholder5 of a bond in a particular bond issue that was the subject of one of the counts of securities fraud in the criminal charging informations filed against him— indicated that bondholders and the Securities Division were aware of questionable securities activity by Alanar as early as August 2001. Reeves asserted that this August 2001 complaint triggered the statute of limitation period applicable to the charges against him. Reeves also presented evidence of other complaints filed in 2002 and 2003 by Alanar bondholders with the Indiana Securities Division and the Indiana Attorney General's Office, as well as a 2004 class action filed in Sullivan County by Alanar bondholders.

The State did not present any witnesses or introduce evidence during the hearing. Instead, the State moved the trial court to consider the charging informations and the allegations contained in the probable cause affidavit in support of Alanar's concealment as a basis to deny Reeves' motion to dismiss. The State argued that the concealment of evidence exception applied because: the charging informations were evidence that Reeves took affirmative action to conceal the offenses by engaging in a Ponzi scheme and misappropriating funds; the State did not have knowledge of evidence sufficient to file charges against Reeves until the SEC obtained its civil injunction in July 2005; and the State could not have discovered sufficient evidence through due diligence. The State argued that the statute of limitation was tolled until July 2005 and that its charging informations filed in June 2009 were therefore timely.

On April 14, 2010, the trial court issued its order denying Reeves' motion to dismiss. The trial court cited to Indiana Code section 35-41-4-2(h)(2)—the concealment of evidence exception to the statute of limitation—and concluded that the State had charged the Defendant with criminal acts alleged within the period of limitation because the charges were brought within five years of the July 2005 date of the SEC injunction.6 The trial court's order provided, in relevant part:

(App.254-55). Reeves filed a motion to certify the order for interlocutory appeal, and the trial court granted his motion. Reeves then sought and was granted permission by this Court to pursue an interlocutory appeal of the trial court's decision.

DECISION

Reeves argues that the trial court abused its discretion by denying his motion to dismiss because the prosecution of the class C felony charges against him is barred by the five-year period of limitation set forth in Indiana Code section 35-41-4-2.

This Court reviews a trial court's ruling on a motion to dismiss a criminal charge for an abuse of discretion. State v. Lindsay, 862 N.E.2d 314, 317 (Ind.Ct.App. 2007), trans. denied. We will reverse a trial court's decision for an abuse of discretion where the court's decision is clearly against the logic and effect of the facts and circumstances. Id. When reviewing a motion to dismiss based on a statute of limitation, we have explained that:

Id. (internal citations omitted) (emphasis added).

The statute applicable to this appeal, Indiana Code section 35-41-4-2, provides in relevant part:

In regard to this concealment exception to the statute of limitation, we have explained that the phrase concealing evidence of the offense "must be held to mean concealment of the fact that a crime has been committed, unconnected with the fact that the accused was the perpetrator" and that "the concealment of the fact of the crime must be the result of some positive act done by the accused, and calculated to prevent discovery of the fact of the offense of which he stands charged." State v. Chrzan, 693 N.E.2d 566, 567 (Ind.Ct.App. 1998) (quoting State v. Holmes, 181 Ind.App. 634, 637, 393 N.E.2d 242, 244 (1979)); see also Umfleet v. State, 556 N.E.2d 339, 341 (Ind.Ct.App.1990), trans. denied.

When Reeves filed his motion to dismiss, he acknowledged that some of the time period alleged in the informations would be timely by arguing that any alleged act occurring prior to June 30, 2004 would be barred by the five-year statute of limitation. In response, the State focused its attention on Reeves' statute of limitation argument, arguing that the five-year statute of limitation was tolled by the concealment of evidence exception in Indiana Code section 35-41-4-2(h)(2) and that the statute of limitation did not begin to run until July 2005 when the SEC obtained an injunction against Alanar. On appeal, Reeves argues that the State did not meet its burden of proving that the concealment exception applied to toll the statute of limitation until July 2005 because it did not present any evidence or witnesses at the motion to dismiss hearing to prove the elements of the exception and that, as a result, all the charges should be dismissed. The State has slightly shifted its argument from below and asserts that there is no need to determine whether the tolling provision of the concealment exception even applies because the crime alleged involves an ongoing crime of a Ponzi scheme that did not end until July 2005 when the SEC obtained its civil injunction against Alanar, making any charges occurring within five years of that time period properly filed within the statute of limitation.

Both parties seem to have put the proverbial cart before the horse and make broad arguments about issues that are beyond the scope of a motion to dismiss hearing, specifically the question of whether the State has met its burden of proving that the crimes charged fall within the statute of limitation. This is an issue that will be presented and ultimately fleshed out at trial. Indeed, the State has the burden at trial of establishing that the crime charged was committed within the statute of limitation. See Greichunos v. State, 457 N.E.2d 615, 617 (Ind.Ct.App. 1983). However, as this is an interlocutory appeal from a motion to dismiss, we deem that the more appropriate issue at hand is whether the State has met its initial burden of making sufficient allegations in the charging information that the offenses were committed within the applicable statute of limitation.

"Generally, the State is required to allege facts in the Information sufficient to bring the charge within the statutory limitation period." Willner v. State, 602 N.E.2d 507, 508 (Ind.1992); see also Ind. Code § 35-34-1-2(a)(5) (providing that a charging information "shall be in writing and allege the commission of an offense by... stating the date of the offense with sufficient particularity to show that the offense was committed within the period of limitations applicable to that offense[.]"). One of the reasons for this requirement is to ensure that only timely-filed charges proceed to trial. Willner, 602 N.E.2d at 508 (citing Ulmer v. State, 14 Ind. 52, 55 (1859)). Indeed, "[a]n information alleging a time outside the statute of limitations which does not allege facts sufficient to constitute an exception to the statute is subject to a motion to dismiss." Greichunos, 457 N.E.2d at 617.

The charging informations for each of the ten counts provided, in relevant part that:

(App.18-27).8

From the face of the informations, which were filed on June 30, 2009, the five-year statute of limitation would not bar the prosecution of any offense alleged to have occurred on or after June 30, 2004. However, the acts alleged to have occurred on or between September 2000 to June 29, 2004 fall outside the five-year period. Thus, the question before this Court is whether the State alleged facts in the charging informations sufficient to bring the charges for acts alleged to have occurred on or between September 2000 to June 29, 2004 within the statutory limitation period so that the charges should be allowed to proceed to trial. Stated another way, we need to determine whether the prosecution of the offense for acts alleged to have occurred from September 2000 to June 29, 2004 was barred because the charging informations did not allege facts sufficient to constitute the concealment of evidence exception contained in Indiana Code section 35-41-4-2(h)(2).

The tolling provision in Indiana Code section 35-41-4-2(h)(2) "serves 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." Kifer v. State, 740 N.E.2d 586, 588 (Ind.Ct.App.2000). However, given the fact that concealment is a "fact-intensive issue[,]" when the State relies on this exception, it must plead the circumstances of the concealment exception in the information so that the "defendant is apprised of the facts upon which the State intends to rely and may be prepared to meet that proof at trial." Willner, 602 N.E.2d at 509 (citing Jones v. State, 14 Ind. 120, 121 (1860) ("Unless the [S]tate, by her pleading, apprises the accused of the acts of concealment upon which [the State] intends to rely, he may not be prepared to resist the effort to deprive him of his right to set up the statute of limitations in bar of the prosecution.")).

Here, the charging informations contain absolutely no allegation of the concealment of evidence exception. The State did not allege in the informations that Reeves concealed evidence of the offense, including no allegation of the dates the concealment occurred or any alleged positive act of concealment done by Reeves. Nor did the State allege that it lacked evidence sufficient to charge Reeves with the offense or that Reeves' offense could not have been discovered by exercise of due diligence. "[A]n information should allege facts sufficient to show that the charge was filed within the limitations period[.]" Willner, 602 N.E.2d at 508. Because a portion of the ten charging informations, on their face, allege a time period outside the statute of limitations (i.e., September 2000 to June 29, 2004) and do not allege facts sufficient to constitute an exception to the statute, the trial court should have granted, in part, Reeves' motion to dismiss as to these dates that fell outside the statute of limitation. See, e.g., Greichunos, 457 N.E.2d at 617 (reversing trial court's denial of defendant's motion to dismiss where charging information failed to contain allegations of concealment or any other circumstance that constitute an exception to applicable statute of limitation); see also Jones, 14 Ind. at 122 (explaining that general allegation that defendant concealed fact of crime was not sufficient and that it was "equally essential" that the positive acts that constituted the concealment of crime be alleged); Randolph v. State, 14 Ind. 232, 234 (1860) (same).

In summary, the State's charging informations against Reeves contain allegations that he committed aiding securities fraud on dates that were within the statute of limitation period (June 30, 2004 to July 2005) and outside of the limitation period (September 2000 to June 29, 2004). The charging informations, however, did not contain any sort of allegation of the concealment of evidence exception that would have taken it outside of the statute of limitation for the acts alleged to have occurred on or between September 2000 to June 29, 2004. Accordingly, the trial court did not err by denying Reeves' motion to dismiss in relation to the June 30, 2004 to July 2005 time period but did err by denying the motion to dismiss in relation to the September 2000 to June 29, 2004 time period. We note, however, that the probable cause affidavit does contain specific allegations regarding the concealment of evidence exception that would have put Reeves on notice that the State intends to rely on the concealment of evidence exception for the purpose of bringing all the alleged acts within the five-year statute of limitation.9 Therefore, under the specific facts of this case, we remand to the trial court for consideration, as set forth in Indiana Code section 35-34-1-4(d), of whether it will discharge the defendant as to the dates specified above or deny the discharge upon determining that the prosecutor would be entitled to cure the information by amendment.

Affirmed in part, reversed in part, and remanded.

BROWN, J., and BRADFORD, J., concur.