Barnes, J.
Peter Dvorak appeals the trial court’s denial of his motion to dismiss charges of Class C felony offer or sale of an unregistered security and Class C felony acting as an unregistered agent. …
Dvorak raises one issue, which we restate as whether the trial court properly denied his motion to dismiss charges based on the statute of limitations.
In June 2015, the State charged Dvorak with Count I, Class C felony offer or sale of an unregistered security, and Count II, Class C felony acting as an unregistered agent. …
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… Dvorak claimed that the five-year statute of limitations began running when the alleged offenses occurred in July 2007. He contended that the statute of limitations was not tolled because the “State fail[ed] to allege any facts demonstrating that Dvorak did any positive act that constitute[d] concealment.” The State responded that Dvorak concealed the offenses by structuring the securities to mature three years later, resulting in Wahl having no reason to believe that a crime occurred until those securities matured.
After a hearing, the trial court denied Dvorak’s motion to dismiss. The trial court found that “[t]he statute of limitations was tolled because Defendant’s structuring of the security was a positive act by the defendant that was calculated to conceal the fact that a crime had been committed.” The trial court found the case to be similar to State v. Chrzan, 693 N.E.2d 566 (Ind. Ct. App. 1998). The trial court noted “it only became evident that a crime was committed when the security matured.” Further, the trial court noted: “If the ruling were otherwise, illegal securities could always be structured to mature after the statute of limitations had passed, and the State would be prevented from ever knowing of its illegality until after it was too late.” …
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Indiana Code Section 35-41-4-2(a) provides that the prosecution for a Class C felony is barred unless it is commenced within five years after the commission of the offense. However, Indiana Code Section 35-41-4-2(h)(2) provides that “[t]he 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 . . . .”
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In support of his argument that the concealment tolling provisions do not apply here, Dvorak relies on Study v. State, 24 N.E.3d 947 (Ind. 2015), cert. denied, and Kifer v. State, 740 N.E.2d 586 (Ind. Ct. App. 2000). …
Our supreme court held that the concealment provisions do not refer to “any evidence about the offense or who committed the offense”; rather, it specifically requires “that the concealed evidence be related to the existence of the offense.” Study, 24 N.E.3d at 952. The concealment provisions apply only where “positive acts that conceal that an offense has been committed” exist. …
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Here, Dvorak argues that there are no allegations of any positive act that he committed to conceal the fact that an offense had been committed. The State argues that Dvorak’s “structuring of the unregistered security included the selection of a maturity date that would cause his illegal activity to fly under the radar for three years after the illegal sale.”
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… In the context of concealment tolling the statute of limitations in a criminal case, our courts have held that a “positive act” to conceal the fact that an offense has been committed is required. Study, 24 N.E.3d at 952. …
We conclude that Dvorak did not engage in any positive act calculated to conceal the fact that he was not registered and the security was not registered with the Secretary of State. Consequently, we conclude that the trial court erred by denying Dvorak’s motion to dismiss. We reverse and remand for proceedings consistent with this opinion.
Kirsch, J., and Robb, J., concur.