Johnson v. State
| Decision Date | 19 August 2022 |
| Docket Number | Court of Appeals Case No. 21A-CR-1234 |
| Citation | 194 N.E.3d 98 |
| Parties | Donald JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorneys for Appellant: Robert W. Hammerle, Hackman Hulett LLP, Indianapolis, Indiana, Julie Treida, Treida Law, PC, Indianapolis, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General of Indiana, Kelly A. Loy, Assistant Section Chief, Criminal Appeals, Indianapolis, Indiana
[1] In this interlocutory appeal, Donald Johnson appeals the denial of his motion to dismiss the seventeen Class C felony securities-related charges filed against him. He presents multiple issues for our review, which we revise and restate as:
We affirm in part, reverse in part, and remand.
[2] On January 21 and 30, 2012, Jeffrey Knutilla filed a complaint with the Office of the Secretary of State and the Chesterton Police Department, respectively, regarding certain financial transactions involving Johnson. Officer Charles Williams of the Prosecution Assistance Unit of the Indiana Secretary of State's Office, Securities Division, investigated Knutilla's complaint and discovered other possible victims, with whom he spoke on September 19, 2012. On March 14, 2014, Williams alleged in his affidavit of probable cause for the issuance of an arrest warrant, which was filed simultaneous with the charging information:
Johnson solicited monies from individuals by guaranteeing a certain high-interest return on their money; usually in real-estate development. Investors in this case typically rolled-over IRA accounts to Equity Trust Company, an independent IRA custodian, and then money would go to Johnson's company Private Lending, LLC. Investors received promissory notes showing the guaranteed interest rate return and were [sic] signed by Johnson. Many investors were unaware that their money was missing because Equity Trust would continue to send statements showing the money was in their accounts and bill them for custodial fees. In some cases, investors received interest payments as promised from Johnson for a period of time. When interest payments stopped and investors requested their investments back, Johnson told them that it was unavailable.
(App. Vol. II at 3.) Williams’ affidavit also included specific allegations from six alleged victims and noted, "no security registration, or request for exemption, exists for Don Johnson, ... or Private Lending, LLC, individually, nor is there any evidence that any was even filed." (Id. at 8.)
[3] Based thereon, the State charged2 Johnson with:
On April 10, 2015, the State filed another probable cause affidavit and charged Johnson with:
On May 12, 2016, the State amended Count V, Count VI, and Count XI to allege Johnson concealed his actions such that the alleged victims "would not know the investment was not valid." (Id. at 23-4.) Further, the amended charges alleged the State could not have discovered the alleged crimes until they were reported by the alleged victims on September 19, 2012, and March 22, 2013.
[4] On June 22, 2016, Johnson filed a motion to dismiss Counts III, IV, V, VI, VII, VIII, XI, XII, and XIII, arguing they were "barred by the relevant statute of limitations." (Id. at 27.) On August 24, 2016, the trial court denied Johnson's motion to dismiss by summary order. On September 28, 2016, Johnson filed a motion to certify the trial court's order for interlocutory appeal. The trial court granted Johnson's request on October 3, 2016. On December 2, 2016, the Indiana Court of Appeals denied Johnson's motion for interlocutory appeal.
[5] On July 16, 2018, Johnson filed a renewed motion to dismiss, arguing new case law, Dvorak v. State ,8 78 N.E.3d 25 (Ind. Ct. App. 2017), trans. denied , was "on all fours with the current case." (App. Vol. II at 47.) Johnson renewed his argument that Counts III, IV, V, VI, VII, VIII, XI, XII, XIII, and XIV "must be dismissed because they violate the statute of limitations[.]" (Id. at 50) (original formatting omitted). He additionally asserted all of the counts should be dismissed "because they fail to state the offenses with sufficient certainty[,]" "because the financial instruments are not securities[,]" and "because the State did not allege that Mr. Johnson knowingly violated securities law[.]" (Id. at 52-54) (original formatting omitted). He also alleged Counts II, IV, VI, VIII, X, XII, and XVI should be dismissed "because Mr. Johnson was not required to register as a broker-dealer[.]" (Id. at 58) (original formatting omitted). Finally, Johnson contended "all counts should be dismissed "because the financial instruments are exempt from securities registration by statute[.]" (Id. at 59) (original formatting omitted).
[6] On April 1, 2021, after a series of continuances by both parties and the court, substitution of counsel, retirement of the original judge, and appointment of a special judge, the State responded to all of Johnson's arguments. The State additionally requested leave to amend the charges against Johnson "to the extent any charging documents or specific counts are deemed insufficient[.]" (Id. at 77.) The State argued it should be granted its request to do so because "such amendments do not meaningfully prejudice the Defendant and the Defendant is already on reasonable and sufficient notice of any claims in his Motion to Dismiss that warrant an amended information or probable cause affidavit." (Id. at 78.)
[7] In his response to the State's request for leave to amend the charges against him, Johnson asserted the State's call to amend "is an open acknowledgement that these fossilized charges must be dismissed" and that it is time for the State to "put up or shut up." (Id. at 79-80.) He also argued the amendments would be of substance and not form, and thus would prejudice him "given the length of the case and that the amendments are coming almost three years after this motion to dismiss was filed and approximately 7 years after the omnibus date." (Id. at 81.) Johnson claimed "[a]ny amendments would require Mr. Johnson to file and litigate a third motion to dismiss" and give the State "a fourth bite of the proverbial apple." (Id. )
[8] The trial court held a hearing on Johnson's motion to dismiss on April 19, 2021. On April 21, 2021, the trial court issued its order denying Johnson's motion to dismiss and granting the State's leave to amend the charges against Johnson, stating:
The State is granted leave to amend to incorporate the statutory mens rea requirement. Although some of the alleged crimes occurred in 2007, in addition to those alleged in 2009, the Defendant is not prejudiced by the delay for two reasons: this Court has not yet set a trial date, and, [sic] he is responsible for some of the delay himself.
(Id. at 99) (footnote omitted). On May 20, 2021, Johnson filed a petition to certify the trial court's order for interlocutory appeal and to stay the proceedings pending the outcome. The trial court granted Johnson's requests on May 26, 2021. This court accepted jurisdiction over the interlocutory appeal on July 16, 2021.
[9] Our standard of review for a trial court's decision on a motion to dismiss is well-settled:
We review a trial court's denial of a motion to dismiss for an abuse of discretion. An abuse of discretion occurs when the decision is clearly against the logic and...
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