MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Jan 18 2017, 8:31 am Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES Curtis T. Hill, Jr. DAVID BIELA AND JAMES Attorney General of Indiana LIVERMAN Stephen A. Kray Ellen H. Meilaender LaPorte, Indiana Deputy Attorney General Indianapolis, Indiana ATTORNEYS FOR APPELLEES SANLEY MAZUR AND GREGORY CZIZEK William F. Sullivan, Jr. Michigan City, Indiana Stephen A. Kray LaPorte, Indiana
IN THE COURT OF APPEALS OF INDIANA
State of Indiana, January 18, 2017 Appellant-Plaintiff, Court of Appeals Case No. 46A03-1608-CR-1742 v. Appeal from the LaPorte Superior Court David Biela, Gregory Czizek, James Liverman, and Stanley The Honorable Michael S. Bergerson, Judge Mazur, Trial Court Cause Nos.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 1 of 22 Appellees-Defendants. 46D01-1602-F5-155 46D01-1602-F5-156 46D01-1602-F5-160 46D01-1602-F5-161
Brown, Judge.
[1] The State of Indiana appeals the trial court’s order granting motions to dismiss
filed by David Biela, Gregory Czizek, James Liverman, and Stanley Mazur
(together, the “Appellees”). The State raises one issue which we revise and
restate as whether the trial court abused its discretion in denying the State’s
motions to amend its charging informations and in dismissing the charges
against the Appellees. We reverse and remand.
Facts and Procedural History
[2] On February 19, 2016, the State filed charges against each of the Appellees
under separate causes. 1 The State charged Biela under cause number 46D01-
1602-F5-155 (“Cause No. 155”) with five counts of promoting professional
gambling as level 6 felonies and one count of corrupt business influence as a
level 5 felony. 2 The State charged Czizek under cause number 46D01-1602-F5-
1 According to the State, it also charged John Greene under another cause with five counts of promoting professional gambling as level 6 felonies and one count of corrupt business influence as a level 5 felony and he pled guilty to two counts of promoting professional gambling as level 6 felonies in exchange for dismissal of the other counts. 2 Amended information was filed against Biela on March 15, 2016, to correct a typographical error.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 2 of 22 156 (“Cause No. 156”) with three counts of promoting professional gambling as
level 6 felonies and one count of corrupt business influence as a level 5 felony.
The State charged Liverman under cause number 46D02-1602-F5-160 (“Cause
No. 160”) with four counts of promoting professional gambling as level 6
felonies and one count of corrupt business influence as a level 5 felony. The
State charged Mazur under cause number 46D01-1602-F5-161 (“Cause No.
161”) with five counts of promoting professional gambling as level 6 felonies
and one count of corrupt business influence as a level 5 felony. The
information filed in each of the Appellee’s cases alleged, with respect to the
counts of promoting professional gambling as level 6 felonies, that the Appellee
“did knowingly or intentionally own, manufacture, possess, buy, sell, rent,
lease, repair or transport a gambling device, to wit: . . . parlay cards . . . for
illegal football betting and wagers” and referred to Ind. Code § 35-45-5-4(a)(1). 3
3 The informations cited “I.C. 35-45-5-4 (1),” which appears to be a reference to Ind. Code § 35-45-5-4(a)(1). Ind. Code § 35-45-5-4(a)(1) provides that a person who “knowingly or intentionally owns, manufactures, possesses, buys, sells, rents, leases, repairs, or transports a gambling device, or offers or solicits an interest in a gambling device” commits promoting professional gambling, a level 6 felony. Ind. Code § 35-45-5-1(e) provides: “Gambling device” means: (1) a mechanism by the operation of which a right to money or other property may be credited, in return for consideration, as the result of the operation of an element of chance; (2) a mechanism that, when operated for a consideration, does not return the same value or property for the same consideration upon each operation; (3) a mechanism, furniture, fixture, construction, or installation designed primarily for use in connection with professional gambling; (4) a policy ticket or wheel; or (5) a subassembly or essential part designed or intended for use in connection with such a device, mechanism, furniture, fixture, construction, or installation.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 3 of 22 Appellant’s Appendix, Volume 2, at 15-16, 49, 80, 110-111. The information
for each of the Appellees alleged, with respect to the counts of corrupt business
influence, that the Appellee “was associated with a group of individuals who
promoted illegal gambling through distribution, collection and payments
associated with parlay cards for illegal football betting and wagers.” 4 Id. at 16,
49-50, 81, 111.
[3] An affidavit for probable cause prepared by Indiana Gaming Commission
Officer Jeffery Boyd was filed in each of the four causes. The affidavit stated
that an investigation corroborated anonymous information regarding an illegal
gambling operation and that “[t]he gambling devices utilized throughout were
‘parlay cards,’ or sports betting cards, which list the week’s games and odds on
those games.” Id. at 9. The affidavit stated that Liverman would visit Biela’s
print shop, return to his vehicle carrying a bag containing items consistent with
stacks or bulk packs of cards, and drive to other locations in an apparent
delivery route, that his behavior was consistent through the football seasons of
2013, 2014, and 2015, that on one occasion Liverman was observed delivering a
bag to a manager at a certain establishment, that based on Boyd’s training and
experience he believed this to be the previous week’s payouts and new parlay
In the application of this definition, an immediate and unrecorded right to replay mechanically conferred on players of pinball machines and similar amusement devices is presumed to be without value. 4 The informations cited Ind. Code § 35-45-6-2(3), which provides that a person “who is employed by or associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity; commits corrupt business influence, a Level 5 felony.”
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 4 of 22 cards, and that after Liverman left, another patron asked the manager for a card
and the manager reached into the bag Liverman had delivered and handed a
card to the person. The affidavit provided that Greene was observed interacting
with Liverman and Biela, picking up cards from Biela’s residence, and traveling
a route to several bars and restaurants, that Gaming Commission officers were
able to purchase football parlay cards at multiple establishments Greene was
observed to visit, and that on one occasion Gaming Commission officers were
able to obtain football parlay cards at a Michigan City establishment and place
bets on them. The affidavit stated that, during the 2013, 2014, and 2015
football seasons, Mazur was observed on multiple occasions picking up parlay
cards from Biela’s home and business.
[4] Further, the affidavit stated that search warrants were executed at Biela’s
residence and his print shop, multiple items consistent with bookmaking were
documented and seized, Biela made admissions he had been printing parlay
cards for a long time and the current business was divided up between Greene,
Liverman, Mazur, and Czizek, he printed 1,150 cards weekly for Greene, 1,200
weekly for Liverman, 600 for Czizek, and 900 for Mazur, that these individuals
control the parlay card distribution and no other person would be able to
distribute cards in the area, and that, at the print shop, a shelf was observed
containing football parlay cards under the names of Greene, Mazur, Czizek,
and Liverman. In the paragraph describing the execution of the search
warrants at Biela’s residence and print shop, the affidavit included a sentence
stating that, “[d]uring the execution of that search warrant, the phones in the
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 5 of 22 residence rang constantly with individuals seeking to place bets.” Id. at 12. The
affidavit stated that ledgers of betting records and parlay cards were discovered
at Liverman’s home during the execution of a search warrant, that bank bags
and parlay cards were discovered at Greene’s home during the execution of a
search warrant, that throughout the search warrant execution the name Czizek
came up from Biela and was found on the shelves of printed parlay cards, and
that Biela indicated Czizek was involved in the distribution of parlay cards.
[5] At the initial hearing on March 1, 2016, the court scheduled the omnibus date
for April 21, 2016 in each cause. On March 24, 2016, Biela filed a
Consolidated Motion to Dismiss Amended Charging Information and Quash
Affidavit for Probable Cause, arguing in part that parlay cards do not fall within
the statutory definition of an illegal gambling device and that his printing,
possessing, and delivery of parlay cards to others does not render him
criminally liable for how they were used by others. 5
[6] On April 5, 2016, the State filed a request for leave to file an amended
information against Biela under Cause No. 155. The State’s request stated that
it “concedes there may be some merit to Defense Counsel’s argument regarding
gambling devices and thus files this amended information under a more
appropriate subsection of the chapter under which original charges were filed
5 Biela also argued that the affidavit should be dismissed because it was obtained by a law enforcement officer presenting false information and that the statement in the affidavit that, during the execution of a search warrant, the phones in the residence rang constantly was false.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 6 of 22 and and [sic] alleges the same underlying events involved.” Id. at 24. The State
argued that no trial date had been set and that Biela’s substantial rights were not
jeopardized. 6 On the same day the State also filed requests for leave to file
amended informations in the other causes. With respect to the charges for
promoting professional gambling, the State requested that the informations be
amended to allege that the Appellees “did . . . knowingly or intentionally . . .
receive gambling information by any means, to wit: . . . football game and point
spread information” and to cite to Ind. Code § 35-45-5-4(a)(2). 7 Id. at 27, 58,
89-90, 119-120. The State also requested the charging informations for each of
the Appellees be amended, with respect to the counts of corrupt business
influence, to allege the Appellee “was associated with a group of individuals
who promoted illegal gambling.” Id. On May 10, 2016, Czizek, Livermore,
and Mazur each filed motions to dismiss the charges against them. Entries
dated April 22, 2016, in the chronological case summaries state that the court
scheduled a hearing for May 19, 2016, and set an omnibus date for June 16,
2016.
6 The State also indicated that it was filing an amended probable cause affidavit to correct a scrivener’s error, namely, that a sentence stating that the phones in the residence rang constantly during the execution of a search warrant was erroneously included in the paragraph referring to Biela’s home but belonged instead in the paragraph referring to Liverman’s home. 7 Ind. Code § 35-45-5-4(a)(2) provides that a person who, “before a race, game, contest, or event on which gambling may be conducted, knowingly or intentionally transmits or receives gambling information by any means, or knowingly or intentionally installs or maintains equipment for the transmission or receipt of gambling information,” commits promoting professional gambling, a level 6 felony.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 7 of 22 [7] On May 19, 2016, the court held a joint hearing on the motions to dismiss and
the motions to amend the charging informations. At the hearing, Biela’s
defense counsel argued that the statute does not regulate or prohibit possession
of parlay cards and that the probable cause affidavit does not state that Biela
received any monetary gain from the gambling operation, received any
percentage of the wins, or contributed to any percentage of the losses. The
court noted that it did not see any evidence in the affidavit that would indicate
that any wagers were even placed. Biela’s counsel noted that gambling means
risking money for gain contingent upon chance and argued there is no evidence
Biela did anything contingent upon chance. 8 The court asked if there was any
evidence by affidavit or otherwise that Biela ever took a wager, and Biela’s
counsel indicated there was not. The prosecutor conceded that parlay cards do
not fit under the portion of the statute for possession of a gambling device but
argued that the parlay cards were used to transmit gambling information which
is illegal under the statute. The prosecutor noted that the definition of gambling
information includes information intended to be used for professional
gambling, 9 and argued that professional gambling is defined in the statute that
criminalizes it and that the applicable definition is one that “[a]ccepts or offers
8 Ind. Code § 35-45-5-1(d) provides in part: “‘Gambling’ means risking money or other property for gain, contingent in whole or in part upon lot, chance, or the operation of a gambling device, but it does not include participating in: . . . (2) bona fide business transactions that are valid under the law of contracts.”
9 Ind. Code § 35-45-5-1(f) provides that “[g]ambling information” means “(1) a communication with respect to a wager made in the course of professional gambling; or (2) information intended to be used for professional gambling.”
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 8 of 22 to accept for profit money or other property raised in gambling.” 10 Transcript
at 16.
[8] The court asked if the probable cause affidavit indicated that there was an
acceptance of money for professional gambling and noted that there had been a
sworn statement that Greene physically took cash in exchange for one of the
parlay cards. The prosecutor argued there was circumstantial evidence that the
Appellees would return to collect their parlay cards and the money that had
been wagered. The prosecutor indicated that this was mentioned in the
affidavit which stated they returned to collect a bag. The court asked what was
in the bag, and the prosecutor replied that she believed “agents would testify
that that would be consistent with containing parlay cards and money. They
would also return and pay out winners.” Id. at 20. The prosecutor further
argued: “The wagers were filled out by individuals. Money was attached to
them and they were put into a bag to be picked up by the four defendants.” Id.
The court later asked “[s]o you’ve got evidence . . . that . . . there was some
wagers being made,” the prosecutor replied affirmatively, the court asked “and
why wasn’t that in the Affidavit,” and the prosecutor replied “I don’t believe we
have to state our entire case within that Affidavit.” Id. at 20-21. The court
stated “[w]ell enough to . . . get probable cause and . . . now you’re asking the
Court to Amend the Charging Information.” Id. at 21. The prosecutor replied
10 Ind. Code § 35-45-5-3(a) provides in part that a person who knowingly or intentionally “accepts, or offers to accept, for profit, money, or other property risked in gambling” commits professional gambling, a level 6 felony.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 9 of 22 that the affidavit included the fact officers were able to place wagers, and the
court stated: “One. One, with John Green[e] who pled guilty this morning.”
Id. at 21. The prosecutor responded “Yes, Your Honor” and stated that the
affidavit contained information that these individuals were observed multiple
times running their routes and collecting their money and included substantial
information that they knew they were transmitting gambling information. Id.
[9] The court asked Officer Boyd if there was any information in the affidavit that
indicated that the Appellees “took any cash in exchange – and made a wager?
Took a wager,” and Officer Boyd testified “No, just the fact that they were – the
gathering up the cards and, and like – as she had said, the [sic] had a route and
had provided that information.” Id. at 40-41. When asked if the men took
money directly, Officer Boyd indicated he observed Liverman take money but
not the other Appellees. When asked why that was not included in the
affidavit, Officer Boyd indicated he felt he had sufficient information in the
affidavit to support the charges. The court stated that it was surprising that an
investigation of this magnitude would have such little information about a
gambling operation that only indicated that one defendant, who has pled guilty,
took a bet on one occasion. The court noted that the motions to amend the
charging informations were “not done within the 30 days of the original
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 10 of 22 omnibus hearing,” and stated “[i]t was done 20 days, so it was not timely
filed.” 11 Id. at 48.
[10] On July 11, 2016, the court issued an Order on Defendants’ Motion to Dismiss
and State’s Motions to Amend Information which denied the State’s motions to
amend the charging informations and granted the motions to dismiss in each of
the Appellees’ cases. The court found that parlay cards did not constitute
gambling devices under Ind. Code § 35-45-5-4(a)(1). Further, the court noted
that the State conceded at the hearing that its motion to amend was not timely
filed pursuant to Ind. Code § 35-34-1-5. The court found that, though it has
discretion to permit a belated amendment, the State’s argument that the
Appellees’ substantial rights were not being violated was disingenuous. The
court found that, in the first place, the State seeks to prosecute the Appellees
under a totally different legal theory and different section of Ind. Code § 35-45-
5-4(a). Secondly, it found that the State identified certain activities “which it
contends support the finding of probable cause” and that the “described
activities fail to allege any criminal conduct; given the fact that the mere
possession of parlay cards is not illegal.” Appellant’s Appendix, Volume 2, at
43-44, 73-74, 104-105, 135-136. The court also found that, in its attempt to
rescue its case, the State’s motions to amend were “supported only by the
marginally modified affidavit” of Officer Boyd which “again fails to allege an
11 The court scheduled the original omnibus date under each cause for April 21, 2016, and the State filed its requests to file amended informations on April 5, 2016, which was sixteen days before the omnibus date.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 11 of 22 essential element of the crime of gambling . . . . ‘the risking of money or
property on lot or chance,’ or in other words, the placement of a wager OR the
making of a bet.” Id. at 44, 74, 105, 136. The court’s order also included the
following in a footnote:
It’s hard to believe that after three years of investigation that the Indiana Gaming Police were unable to establish any direct proof of illegal gambling other than the two wagers placed with Defendant John Greene; who has pled guilty. With respect to the conduct of the other charged defendants, the affidavit contains nothing more than speculation and conjecture. Criminal cases require much more proof than that.
By contrast, in undercover drug cases investigated by the MCPD Drug Task Force, a confidential informant is outfitted with a wire and a ‘button cam’ to record the illegal exchange, together with prerecorded drug-buy cash. Use of such protocol, is standard operating procedure. The efforts of the Indiana Gaming Police fall woefully short of what is universally expected in such undercover operations.
Id. at 44 n.3, 74 n.3, 105 n.3, 136 n.3. The court dismissed the charges against
the Appellees.
Discussion
[11] The issue is whether the trial court abused its discretion in denying the State’s
motions to amend the charging informations and in dismissing the charges
against the Appellees. The State argues that it sought to amend the charges to
allege violations under subsection (a)(2) of the statute and that “[t]he operative
facts supporting the charge remained the same, as the proffered amended
charges alleged that the parlay cards, which contain point spread information, Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 12 of 22 constituted the ‘gambling information’ that the defendants transmitted or
received.” Appellant’s Brief at 13. It notes that it sought the amendments
sixteen days prior to the omnibus date and argues that the Appellees had a
reasonable opportunity to prepare for and defend against the proposed amended
charges and that no trial date had been scheduled. The State further asserts that
“the court clearly thought it mattered whether [Appellees] themselves were
involved in actual gambling,” that it was not alleging the Appellees placed
wagers or bets but only that they received or transmitted information that was
intended to be used to engage in professional gambling, and that the facts
alleged were sufficient to state the offense of promoting professional gambling.
Id. at 16-17. It also argues that “whether the evidence will be sufficient to prove
the offense beyond a reasonable doubt is not a consideration that may come
into play at this stage; a court may not dismiss charges because it finds the
evidence insufficient to prove the offenses” and that, “even if [it] were required
to prove that [Appellees] engaged in gambling, a perceived lack of sufficient
evidence to prove this fact would not be a proper basis for dismissal.” Id. at 18.
[12] Biela and Liverman assert that “[t]he trial court dismissed the original and
requested amended informations for want of probable cause.” Appellee Biela
and Liverman’s Brief at 5. They argue that, “[w]ithout being presented
evidence of ongoing gambling in a three year gambling investigation the judge
was hard pressed to determine probable cause that was sufficient to charge the
defendants with a gambling offense, ie what gambling activity was aided,
induced, or caused” by Appellees and “before what gambling events did the
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 13 of 22 defendants knowingly and intentionally transmit or receive gambling
information for those events as charged.” Id. at 6. They argue that Biela
engaged in bona fide business transactions. They also argue that the trial
court’s decision was based on the want of sufficient probable cause supporting
the original and proposed amended informations and “[y]et the State has
chosen to waive this issue on appeal and focus only on the issue of statutory
interpretation.” Id. at 8.
[13] Mazur and Czizek argue that the court was within its discretion when it granted
the motions to dismiss the charges rather than allowing the State to make
substantive amendments, that the proposed amendment constitutes a totally
different crime and legal theory of prosecution, and that the court correctly
ruled the amendment “was a violation of the defendant’s substantial rights.”
Appellee Mazur and Czizek’s Brief at 8. They also argue that the probable
cause affidavit “is void of facts of transmitting gambling information, which is
information that is intended to be used for professional gambling,” and that
“[t]here is nothing in the Probable Cause Affidavit supporting gambling
charges” against Mazur or Czizek. Id.
[14] In reply, the State argues that the proposed amended informations merely
changed the subsection of the statute under which the charges were brought,
that it is black-letter law in Indiana that a lack of probable cause is not a proper
basis upon which charges may be dismissed, that the offense can be committed
even if no one ever actually uses the information in order to place or receive a
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 14 of 22 bet or wager, and that the probable cause affidavit clearly alleges the receipt of
the gambling information by Mazur and Czizek.
[15] A charging information may be amended at various stages of a prosecution,
depending on whether the amendment is to the form or to the substance of the
original information, and whether an amendment to a charging information is a
matter of substance or form is a question of law. Erkins v. State, 13 N.E.3d 400,
405 (Ind. 2014) (citations omitted), reh’g denied. Ind. Code § 35-34-1-5(b)
provides:
The indictment or information may be amended in matters of substance and the names of material witnesses may be added, by the prosecuting attorney, upon giving written notice to the defendant at any time:
(1) up to:
(A) thirty (30) days if the defendant is charged with a felony; or
(B) fifteen (15) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date; or
(2) before the commencement of trial;
if the amendment does not prejudice the substantial rights of the defendant. . . .
[16] A defendant’s substantial rights include a right to sufficient notice and an
opportunity to be heard regarding the charge, and if the amendment does not
affect any particular defense or change the positions of either of the parties, it
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 15 of 22 does not violate these rights. Erkins, 13 N.E.3d at 405 (citation omitted).
Ultimately, the question is whether the defendant had a reasonable opportunity
to prepare for and defend against the charges. Id. at 405-406 (citations omitted).
[17] Here, the State’s proposed amendments to the charging informations against
the Appellees do not prejudice their substantial rights. The original charging
informations were filed on February 19, 2016, and the State’s requests to amend
the informations were filed forty-six days later on April 5, 2016, before any trial
date had been scheduled. Further, the original charging informations cited
subsection (1) of Ind. Code § 35-45-5-4(a) and alleged the Appellees committed
the offenses of promoting professional gambling based on their use of parlay
cards for illegal football betting and wagers, and the proposed amended
informations cited subsection (2) of the statute and alleged they committed the
offenses by transmitting or receiving football game and point spread
information. The original charging informations also alleged the Appellees
committed the offense of corrupt business influence and were associated with a
group of individuals who promoted illegal gambling through distribution,
collection, and payments associated with parlay cards for illegal football betting
and wagers, and the proposed amended informations alleged they were
associated with a group of individuals who promoted illegal gambling.
[18] Based upon the record, and in light of the fact the requests to amend were filed
forty-six days after the original information and before any trial date had been
scheduled, we conclude the Appellees had a reasonable opportunity to prepare
for and defend against the charges as amended and that the trial court erred in
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 16 of 22 denying the State’s motions to amend the charging informations. See Blythe v.
State, 14 N.E.3d 823, 830 (Ind. Ct. App. 2014) (holding that the defendant was
not prejudiced by the trial court’s order granting the State’s motion to amend
the charging information and that the defendant had a reasonable opportunity
to prepare for and defend against the charges); Gomez v. State, 907 N.E.2d 607,
611 (Ind. Ct. App. 2009) (holding the amended information did not prejudice
the defendant’s substantial rights, that the time period between the amendment
of the charging information and the jury trial was approximately ten months
and gave the defendant the opportunity to prepare for the murder charge, and
that the defendant could not show that he was prejudiced by the added charge
as he had ample notice of the new charge and a significant amount of time to
prepare a defense for the trial), trans. denied.
[19] We review a trial court’s dismissal of a charging information for an abuse of
discretion. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). In
reviewing a trial court’s decision for an abuse of discretion, we reverse only
where the decision is clearly against the logic and effect of the facts and
circumstances. Id.
[20] To the extent the trial court’s order dismissing the charges against the Appellees
rested on a determination that the probable cause affidavit was defective or did
not establish that probable cause existed to believe the Appellees committed the
offenses of promoting professional gambling and corrupt business influence as
alleged in the proposed amended information, we observe that Ind. Code § 35-
34-1-4 lists eleven possible grounds for dismissing a charging information and a
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 17 of 22 lack of probable cause is not one of those grounds.12 The Indiana Supreme
Court has held that “lack of probable cause is not grounds for dismissing a
charging information.” Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000)
(noting that the statute allowing a court to dismiss contains no provision
regarding a defective probable cause affidavit) (citing Hicks v. State, 544 N.E.2d
500, 505 (Ind. 1989) (“The lack of probable cause is not a proper ground on
which to predicate a motion to dismiss the information. The probable cause
affidavit relates to the pre-trial detention of a defendant, not the charging
12 Ind. Code § 35-34-1-4(a) provides:
The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: (1) The indictment or information, or any count thereof, is defective under section 6 of this chapter. (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in counts. (3) The grand jury proceeding was defective. (4) The indictment or information does not state the offense with sufficient certainty. (5) The facts stated do not constitute an offense. (6) The defendant has immunity with respect to the offense charged. (7) The prosecution is barred by reason of a previous prosecution. (8) The prosecution is untimely brought. (9) The defendant has been denied the right to a speedy trial. (10) There exists some jurisdictional impediment to conviction of the defendant for the offense charged. (11) Any other ground that is a basis for dismissal as a matter of law.
Also, Ind. Code § 35-34-1-8 provides in part that a motion to dismiss information under Ind. Code § 35-34-1- 4 shall be in writing, states when the court may deny the motion without conducting a hearing, states that if the motion is based upon the existence or occurrence of facts, the motion shall be accompanied by affidavits containing sworn allegations of these facts and that, if a hearing is necessary to resolve questions of fact, the court shall conduct a hearing and make findings of fact essential to the determination of the motion.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 18 of 22 instrument.”); Gilliam v. State, 270 Ind. 71, 383 N.E.2d 297, 303 (1978)
(observing “[t]he probable cause affidavit is not the means by which the accused
is charged with a crime” but “is a means of satisfying the constitutional and
statutory requirements that the pre-trial detention of the accused to face the
charge be based upon a determination, by a neutral and detached magistrate,
that probable cause exists to believe that the accused committed the crime”)),
reh’g denied; see also State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014) (noting that
lack of probable cause is not grounds for dismissing a charging information
against an adult offender and citing Flowers); Pond v. State, 808 N.E.2d 718, 721
(Ind. Ct. App. 2004) (observing that lack of probable cause is not grounds for
dismissing a charging information and citing Flowers), trans. denied; State v. King,
502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987) (noting that the deficiency of a
probable cause affidavit is not a ground for dismissal of the information as the
probable cause affidavit is not the manner by which a defendant is charged with
a crime); State v. Palmer, 496 N.E.2d 1337, 1341 (Ind. Ct. App. 1986) (holding
that neither Indiana statute nor case law require a charging information to be
accompanied by a probable cause affidavit unless the information is to serve as
the basis for an arrest warrant, that the lack of probable cause is not grounds for
dismissal, and that the trial court erred in granting a motion to dismiss for lack
of probable cause). Thus, dismissal of the informations for lack of probable
cause was improper.
[21] Further, 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. State v.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 19 of 22 Morgan, 60 N.E.3d 1121, 1125 (Ind. Ct. App. 2016) (citing State v. Bilbrey, 743
N.E.2d 796, 798 (Ind. Ct. App. 2001)), trans. denied; Isaacs, 794 N.E.2d at 1122;
King, 502 N.E.2d at 1368. “The purpose of the information is to allege facts
sufficient in law to support a conviction and to sufficiently charge the crimes so
that a defendant may prepare a defense and be protected against double
jeopardy in the future.” Isaacs, 794 N.E.2d at 1122; see also King, 502 N.E.2d at
1370. The State is not required to include detailed factual allegations in a
charging information. Gutenstein v. State, 59 N.E.3d 984, 995 (Ind. Ct. App.
2016), trans. denied. “Questions of fact to be decided at trial or facts constituting
a defense are not properly raised by a motion to dismiss.” Isaacs, 794 N.E.2d at
1122 (citing King, 502 N.E.2d at 1370). “Motions to dismiss, before trial,
directed to the sufficiency of the evidence, are improper.” State v. Houser, 622
N.E.2d 987, 988 (Ind. Ct. App. 1993) (citation omitted), reh’g denied, trans.
denied; see also Bilbrey, 743 N.E.2d at 798 (noting it is improper for a trial court
to grant a defendant’s motion to dismiss an information when it is based on the
sufficiency of the evidence). “However, an information may be dismissed if the
facts stated in the information do not constitute an offense.” Isaacs, 794 N.E.2d
at 1122. “A hearing on a motion to dismiss is not a trial of the defendant on the
offense charged.” Morgan, 60 N.E.3d at 1126 (citing Isaacs, 794 N.E.2d at 1122
(noting that the facts permitted to be raised under Ind. Code § 35-34-1-8
typically concern only pre-trial matters)).
[22] The State’s proposed amended charging informations adequately alleged the
crimes of promoting professional gambling and corrupt business influence. The
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 20 of 22 informations listed the statutory provisions and the date and county of the
alleged crime of the alleged offenses. Taking the facts in the proposed amended
informations as true, the State charged the elements of the offenses sufficiently
to allow the Appellees the opportunity to prepare a defense. The trial court
essentially granted the Appellees a mini-trial and ruled that there was
insufficient evidence to charge them. A hearing on a motion to dismiss is not a
trial on the charged offenses, Morgan, 60 N.E.3d at 1126, and a motion to
dismiss prior to trial directed to the sufficiency of the evidence is improper.
Houser, 622 N.E.2d at 988. Also, to the extent it is asserted that Biela engaged
in bona fide business transactions, we note that “whether one has a statutory
defense to the charges in an information goes beyond the issues that may be
decided by a motion to dismiss and instead is a matter appropriately decided at
trial.” Isaacs, 794 N.E.2d at 1122-1123.
[23] Accordingly, we conclude that the trial court abused its discretion in granting
the Appellees’ motions to dismiss. See Houser, 622 N.E.2d at 988 (holding that
the charging informations clearly alleged sufficient facts to constitute the
offenses charged, that motions to dismiss before trial directed to the sufficiency
of the evidence are improper, and that the trial court erred in granting the
defendants’ motions to dismiss); Bilbrey, 743 N.E.2d at 799 (holding it would be
necessary to develop the facts of the case to determine whether the defendant
operated a motor vehicle, that the fact the defendant denied the allegation
stating he was operating a motor vehicle does not demonstrate as a matter of
law that he was not operating a motor vehicle, and that the trial court erred in
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 21 of 22 granting the defendant’s motion to dismiss the charges against him); King, 502
N.E.2d at 1370 (holding that the State’s informations adequately charged the
crime of unlawfully selling fireworks, that each information listed the statutory
provisions, the date and county of the alleged crime, and charged the
defendants with unlawfully selling at retail fireworks to an undercover police
officer, that the purpose of the information is to allege facts sufficient in law to
support a conviction and to sufficiently charge the crimes so that a defendant
may prepare a defense and be protected against double jeopardy in the future,
that taking the facts alleged in the information as true the State had charged the
elements of the crime sufficiently to allow the defendants the opportunity to
prepare a defense, that whether the defendants’ alleged defense was adequate
was a matter appropriately decided at trial, and thus that the trial court erred in
granting the motion to dismiss).
Conclusion
[24] For the foregoing reasons, we reverse the order of the trial court denying the
State’s motions to amend the charging informations and dismissing the charges
against the Appellees.
[25] Reversed and remanded.
Vaidik, C.J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 22 of 22