Gilliland v. State

• Citation: 979 N.E.2d 1049
• Decision Date: 10 December 2012
• Docket Number: No. 46A03–1202–CR–97.,46A03–1202–CR–97.
• Parties: Edward GILLILAND, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Court of Appeals of Indiana

979 N.E.2d 1049

Edward GILLILAND, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 46A03–1202–CR–97.

Court of Appeals of Indiana.

Dec. 10, 2012.

Craig V. Braje, Elizabeth A. Flynn, Michigan City, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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) If an individual is required to make a report under this article in the individual's capacity as a member of the staff of a medical or other public or private institution, school, facility, or agency, the individual shall immediately notify the individual in charge of the institution, school, facility, or agency or the designated agent of the individual in charge of the institution, school, facility, or agency.

(b) An individual notified under subsection (a) shall report or cause a report to be made.

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,

(a) A person who knowingly fails to make a report required by IC 31–33–5–1 commits a Class B misdemeanor.

(b) A person who knowingly fails to make a report required by IC 31–33–5–2 commits a Class B misdemeanor. This penalty is in addition to the penalty imposed by subsection (a).

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:

[O]n [or] between August 1st, 2007 and October 28th, 2008, Edward L. Gilliland had reason to believe that minor child K.T. was a victim of child abuse or neglect and failed to report such child abuse or neglect to law enforcement or the department of child services and such offense was concealed by the failure to make such report for the duration of the charges and by lying to officers on 11/21/08, and further that the State did not have evidence sufficient to file charges until an investigative report was received after October 22, 2010, and could not have discovered sufficient evidence through due diligence.

Appellant's...