Lebo v. State

• Decision Date: 16 November 2012
• Docket Number: No. 46A05–1202–CR–104.,46A05–1202–CR–104.
• Citation: 977 N.E.2d 1031
• Parties: Marybeth LEBO, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

977 N.E.2d 1031

Marybeth LEBO, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 46A05–1202–CR–104.

Court of Appeals of Indiana.

Nov. 16, 2012.

Craig V. Braje, Michigan City, IN, 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.

OPINION

BRADFORD, Judge.

Having convicted former LaPorte High School junior varsity volleyball coach Robert Ashcraft of multiple sex crimes against a minor student athlete, the State of Indiana charged Marybeth Lebo, the school's varsity volleyball coach, with failure to report child abuse or neglect. Lebo appeals the trial court's denial of her motion to dismiss these charges, arguing they are barred by the statute of limitations and lack sufficient specificity. We conclude that failure to report is a continuing offense to which the statute of limitations does not apply and, alternatively, that Lebo's alleged instruction that her volleyball players not discuss Ashcraft's conduct with their parents was sufficient to invoke the concealment exception to the statute of limitations. We also conclude that the charging informations, together with testimony from the probable cause hearing, allege sufficiently specific facts from which Lebo can prepare her defense. Therefore, we affirm.

FACTS AND PROCEDURAL HISTORY

At all times in question, Lebo was employed as the varsity volleyball coach at LaPorte High School. In this capacity, Lebo supervised Robert Ashcraft, who was employed as the school's junior varsity volleyball coach. K.T., a minor student, began playing volleyball at LaPorte High School on or about August 1, 2007. At that time, K.T. was fifteen years of age, turning sixteen on June 21, 2008.

Ashcraft resigned from his employment with the LaPorte Community School Corporation on October 28, 2008. Around November 21, 2008, the LaPorte City Police Department began investigating allegations of a sexual relationship between Ashcraft and K.T. On December 17, 2009, Ashcraft was arrested and charged with felony sexual misconduct with a minor and felony child seduction. In January of 2010, the Indiana State Police (“ISP”) began investigating whether the administration and staff of the LaPorte Community School Corporation, including Lebo, were aware of the relationship between Ashcraft and K.T. and failed to report it to an appropriate authority. The investigation entailed reviewing materials from Ashcraft's criminal case and over 100,000 emails from the LaPorte Community School Corporation, as well as conducting additional interviews with student volleyball players and their parents. The ISP submitted its completed investigation report to the LaPorte County Prosecutor's Office on October 23, 2010.

In July of 2011, a jury convicted Ashcraft of multiple counts of felony sexual misconduct with a minor and felony child seduction. A probable cause hearing regarding potential charges against Lebo was held on September 6, 2011. At the hearing, ISP Detective Michael Robinson testified that the investigation into Lebo revealed that several different parents talked to Lebo about Ashcraft's inappropriate conduct with K.T., describing their relationship as being “almost like they were boyfriend and girlfriend.” Appellant's App. p. 64. Detective Robinson added that “[Lebo] received several reports, all regarding ... Coach Ashcraft, who was forty-two, forty-three years of age, and this player who was fifteen, sixteen years of age during the course of this time period....” Appellant's App. p. 60. “And at numerous times it wasn't just the coach and some other player or the coach and this other player, it kept coming back to the same player....” Appellant's App. p. 60. “It specifically even mentioned in [Ashcraft's] personnel file a couple of times, [K.T.'s] name.” Appellant's App. p. 60.

According to Detective Robinson's testimony, the investigation also revealed that Lebo “documented in Mr. Ashcraft's personnel file [that Lebo] witnessed a couple of instances” of “inappropriate contact” between Ashcraft and K.T. Appellant's App. p. 59. Specifically, at a volleyball tournament in Crown Point, Lebo observed that “Ashcraft was leaning up against between the legs of the victim [while] watching a movie or something. In her words, [Lebo] was very uncomfortable with that [and] made the girls get up right away and start doing something else.” Appellant's App. p. 59. Another instance occurred during a bus ride; Lebo noticed that “Ashcraft had put his arm around [K.T.] and was like sharing some food, yogurt, holding the cup for her, just stuff that made [Lebo] feel it was very inappropriate.” Appellants' App. p. 59. Lebo further documented that “she was in fear of losing her job because of this ... Ashcraft and [K.T.] situation.” Appellant's App. pp. 59–60.

Detective Robinson also testified that the investigation found no indication that Lebo reported Ashcraft's conduct to any authority at LaPorte High School, the Laporte Community School Corporation, the local or state police department, or the Department of Child Services. Lebo did, however, instruct her student volleyball players “not to tell anybody what was going on. [D]on't tell your parents. Don't tell anybody.” Appellant's App. p. 64. Lebo also helped prepare Ashcraft's resignation letter, which does not reference Lebo's notes in Ashcraft's personnel file regarding his inappropriate conduct with K.T. The letter states only that there was “some type of coaching problem.” Appellant's App. p. 63.

On September 6, 2011, the State charged Lebo with two counts of failure to report child abuse or neglect, both Class B misdemeanors. Count I alleged a violation of Indiana Code section 31–33–5–1 as follows:

Detective Michael Robinson being duly sworn upon his oath says that: in the County of LaPorte, State of Indiana, on or between August 1, 2007 and October 28, 2008, Marybeth Lebo 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 instructing her players during the 2007 and 2008 season not to discuss team matters or rumors with anyone, 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 App. p. 11. Count II alleged a violation of Indiana Code section 31–33–5–2 as follows:

Detective Michael Robinson being duly sworn upon his oath says that: in the county of LaPorte, state of Indiana, on or between August 1, 2007 and October 28, 2008, Marybeth Lebo while employed as a teacher and a coach for LaPorte High School 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 the individual in charge of the school or the individual's designated agent and such offense was concealed by the failure to make such report for the duration of the charges and by instructing her players during the 2007 and 2008 season not to discuss team matters or rumors with anyone, 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 App. p. 13.

On September 29, 2011, Lebo filed a written motion to dismiss the charges against her, alleging that the charging informations were filed beyond the statute of limitations. At a hearing on this motion, Lebo orally claimed that the informations should also be dismissed because the facts stated did not constitute an offense and because the offenses were not alleged with sufficient specificity. On February 7, 2012, the trial court denied Lebo's motion on all asserted grounds. This court granted Lebo's motion for interlocutory appeal on April 13,2012.

DISCUSSION AND DECISION

“We review a trial court's denial of a motion to dismiss for an abuse of discretion.” Delagrange v. State, 951 N.E.2d 593, 594 (Ind.Ct.App.2011), trans. denied. This means “we [will] reverse only where the decision is clearly against the logic and effect of the facts and circumstances.” Id. “As a general rule, when a defendant files a motion to dismiss an information, the facts alleged in the information are to be taken as true.” Id. “Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss.” Id. at 594–95.

“[W]here a charging instrument ... lack[s] 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.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind.Ct.App.2010), trans. denied (citing Patterson v. State, 495 N.E.2d 714, 719 (Ind.1986)). Here, the trial court relied on the testimony given at the probable cause hearing in denying Lebo's motion. SeeInd.Code § 35–33–7–2 (“In lieu of the affidavit ... the facts may be submitted orally under oath to the judicial officer.”).

I. Whether the Charges Are Barred by the Statute of Limitations

Lebo argues that the trial court abused its discretion in denying Lebo's motion to dismiss because the State's charges are barred by the statute of limitations. Indiana Code section 35–41–4–2(a)(2) requires the State to commence prosecution of a misdemeanor offense within two years after its commission. “[This] protect[s] defendants from the prejudice that a delay in prosecution could bring, such as fading memories and stale evidence.” Sloan v. State, 947 N.E.2d 917, 920 (Ind.2011) (citing Kifer v. State, 740...