author: BRADFORD, Judge.

text:
    Clinton COUCH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 48A04-1204-CR-181.
    Court of Appeals of Indiana.
    Nov. 14, 2012.
    Rehearing Denied Jan. 18, 2013.

      Michael Frischkorn, Frischkorn Law LLC, Fortville, IN, Attorney for Appellant.
    Greogory F. Zoeller, Attorney General of Indiana, Katherine Modesitt Cooper, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BRADFORD, Judge.

Twenty-eight-year-old Clinton Couch befriended thirteen-year-old D.K., giving assurances that he wanted to be a “big brother” to D.K., who had recently lost a sister. Far from being a brother to D.K., Couch was, in fact, “grooming” him to be a victim, and it was not long before Couch propositioned D.K. and began molesting him. Over the course of several months, Couch anally penetrated D.K. with his penis and fellated him. Couch made D.K. to do the same to him, to devastating effect. D.K., formerly a “happy-go-lucky” boy, began committing crimes and engaging in self-destructive behavior, hoping that incarceration or death would finally free him from Couch’s abuse. Couch also took pornographic photographs of D.K., subjected him to physical violence, threatened to make him “disappear,” and was in possession of over one thousand articles of child pornography.

Finally, the day after Thanksgiving, D.K.’s mother was warned by another of Couch’s victims to keep her son away from him, and, although D.K. was now safe from further abuse, his innocence is irretrievably lost and he is taking two anti-depressants and will be in long-term counseling. Couch ultimately pled guilty to five counts of Class A felony child molesting, Class C felony child exploitation, and Class D felony possession of child pornography, and the trial court sentenced him to an aggregate sentence of ninety-one years of incarceration. Couch contends that his sentence is inappropriately harsh and that the trial court abused its discretion in admitting, at sentencing, the testimony of two other alleged victims. We affirm.

FACTS AND PROCEDURAL HISTORY

In July of 2011, twenty-eight-year-old Couch befriended thirteen-year-old D.K. after meeting D.K. through D.K.’s babysitter. D.K.’s sister had died approximately one year previously, and Couch presented himself as a “big brother figure” to D.K., telling him (according to D.K’s father), “ ‘Hey, you know[,] your sister’s deceased and I’ll be your brother.’” Tr. p. 87. D.K. did, in fact, think of Couch as a brother, and Couch also befriended D.K’s parents. Couch would take D.K. out for bowling or pizza and over to Couch’s parents’ home to swim.

One day, Couch asked D.K. if he had ever had a blow job. When D.K. replied that he had not, Couch fellated him against his wishes. Between July and late November of 2011, Couch performed anal sex on D.K.; fellated D.K. against his wishes; caused D.K. to perform fellatio and attempt anal sex on him; and took pictures of D.K. naked, including poses where his penis was visible and another where D.K. spread his buttocks to show his anus. Couch and D.K. exchanged between five and eight “blow jobs[.]” Tr. p. 9. Couch downloaded the images of D.K. onto his computer and had D.K. wear a blue thong, wrestling singlet, and “butt plug[,]” which Couch also wore. Tr. p. 9. D.K. witnessed child pornography on Couch’s computer. At times when swimming, Couch “would come up to [D.K.] and just like kick [him] real hard and it didn’t feel good at all.” Tr. p. 48. Couch told D.K. at times that he would make him “disappear[.]” Tr. p. 49. Once, Couch tied D.K. with a rope and threw him into the swimming pool.

After a few months of spending time with Couch, D.K.’s behavior had changed for the worse, to say the least. D.K. became disruptive, began breaking into cars in an attempt to be arrested and committed to juvenile detention, flew into rages, told others that he wanted to kill himself, and did in fact attempt suicide at least once. On “Black Friday” of 2011, seventeen-year-old J.M. approached D.K.’s mother in a Walmart and told her, “I hear that [Couch is] hanging out with [D.K.] and I need to tell you something because he is not a good guy” and “[Couch] is a bad guy. He molests children.” Tr. pp. 30, 34.

The Indiana State Police were soon contacted, and met with D.K. on November 25, 2011. On November 26, 2011, State Police executed a search warrant at Couch’s residence, recovering over one thousand examples of child pornography, wrestling singlets, and “butt plugs[.]” Tr. p. 62. Among the photographs recovered, one depicts a juvenile male being anally penetrated by an adult male, another depicts one juvenile male fellating a second while being anally penetrated by a third, and a third photograph depicts a juvenile male urinating on another. State’s Exs. 1, 2, 3.

On December 1, 2011, the State charged Couch with five counts of Class A felony child molesting, Class C felony child exploitation, Class D felony intimidation, and Class D felony possession of child pornography. On February 27, 2012, in exchange for not filing charges related to other alleged victims who had come forward, Couch plead guilty to five counts of Class A felony child molesting, Class C felony child exploitation, and Class D felony possession of child pornography.

On March 22, 2012, the trial court held a sentencing hearing. Among others, J.M. and fourteen-year-old A.B. testified for the State. J.M. testified that he and Couch had engaged in frequent fellation of each other when J.M. was between the ages of ten and fourteen. A.B., who is related to Couch by marriage, testified that, beginning when he was thirteen, Couch “was always asking to perform oral sex and for [A.B.] to give him oral sex ... every time we were alone and his parents weren’t at his house.” Tr. p. 59. A.B. testified that this occurred approximately ten to fifteen times. Couch objected to the above testimony on the basis that it should not be usable to support a finding that multiple victims were an aggravating circumstance, but conceded that it was relevant for character purposes. The trial court found, as aggravating circumstances, Couch’s violation of trust, the repeated sexual assaults of a particularly vulnerable child, the pattern of depravity Couch has exhibited, and that the victim “will spend the rest of his life reliving from time to time these assaults and trying to move on[.]” Tr. p. 93. The trial court found, as mitigating circumstances, Couch’s lack of criminal record, his guilty plea, and the “good parts” of his life as described by his family. Tr. p. 93. The trial court sentenced Couch to forty years of incarceration for each child molesting conviction, eight years for child exploitation, and three years for possession of child pornography. The trial court ordered child molesting Counts I through III to be served concurrently with one another but consecutive to Counts IV and V, which would also be served concurrently with one another; the child exploitation sentence to be served consecutively to the child molesting sentences; and the possession of child pornography sentence to be served consecutively with the others, for an aggregate sentence of ninety-one years of incarceration.

DISCUSSION AND DECISION

I. Whether the Trial Court Abused its Discretion in Admitting Certain Evidence

Couch claims that the trial court abused its discretion in admitting the testimony of J.M. and A.B. The admission of testimony at a sentencing hearing is at the discretion of the court. Rabadi v. State, 541 N.E.2d 271, 277 (Ind.1989). “Indiana Evidence Rule 101(c) explicitly states that the rules of evidence, other than those with respect to privileges, ‘do not apply in ... [proceedings relating to ... sentencing, probation, or parole.’ ” Hines v. State, 856 N.E.2d 1275, 1281 (Ind.Ct.App.2006), trans. denied.

Couch’s argument in this regard is essentially that the admission of J.M.’s and A.B.’s testimony amounts to a circumvention of his plea agreement because the trial court allegedly used their testimony to enhance his sentences and order some of them to be served consecutively. See, e.g., Roney v. State, 872 N.E.2d 192, 201 (Ind.Ct.App.2007) (“If a trial court accepts a plea agreement under which the State agrees to drop or not file charges, and then uses facts that give rise to those charges to enhance a sentence, it in effect circumvents the plea agreement.”), trans. denied. There is, however, no indication in the record that the trial court did this. The trial court did not find that Couch’s uncharged conduct was an aggravating circumstance warranting the imposition of enhanced and consecutive sentences, and, indeed, did not even mention it in imposing sentence. Although Couch claims that the evidence in question “poisoned the well and led to the trial court sentencing Couch more harshly[,]” this is pure conjecture supported by nothing in the record. Appellant’s Br. p. 11. Couch has failed to establish that the trial court abused its discretion in this regard.

II. Whether Couch’s Sentence is Inappropriate

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind.Ct.App.2006), trans. denied (citations and quotation marks omitted). “[Wjhether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind.Ct.App.2007). As previously mentioned, the trial court sentenced Couch to an aggregate ninety-one years of incarceration.

The nature of Couch’s crimes was particularly egregious. Couch chose a particularly vulnerable victim who was already dealing with the recent loss of a sibling and, in exploiting that weakness to satisfy his depraved desires, compounded the tragedy exponentially. Instead of acting as a “big brother” to D.K. in a time of need, Couch betrayed D.K’s trust and violated him in the vilest possible fashion, on multiple occasions fellating or sodomizing him or causing D.K. to perform those acts on him. As if this were not bad enough, Couch violated D.K. further by taking pornographic images of him, did physical violence to him, and suggested that he might “disappear.” We have a difficult time imagining how a person could violate a person worse than Couch did D.K.

The effect of Couch’s crimes on D.K. has been profound. A few months into his relationship with Couch, D.K., a formerly “well-mannered” and “happy-go-lucky” boy, became disruptive and self-destructive. Tr. pp. 29, 37. D.K. committed crimes in an attempt to be taken away from Couch, threatened to kill himself “just to get away from [Couch,]” and had to be put in a facility called the Anderson Center when he actually attempted suicide. Tr. p. 43. D.K. will “probably be in counseling for a very long time” and is currently taking two anti-depressants, Welbutrin and Prozac. Tr. p. 31. The nature of Couch’s offenses fully justifies his sentence.

As for Couch’s character, we cannot say that we see much in the record to recommend it. Couch’s character is that of a sexual predator who preys on the vulnerable, and, in this case, he chose an exceptionally vulnerable victim. Couch also indirectly contributed to the exploitation and molestation of perhaps hundreds of other children, being in possession of over one thousand articles of child pornography. Couch’s argument in this regard is essentially that his lack of prior criminal history and guilty plea warrant a significant sentence reduction. We cannot agree. We do not put much stock in Couch’s lack of criminal history, given evidence that he serially molested at least one other boy and attempted to serially molest a third. Couch also admitted that he had been collecting child pornography, a criminal activity, for “several years.” Tr. p. 84. Under the circumstances, we also cannot say that Couch’s guilty plea warrants a sentence reduction.

Finally, the record as a whole, in our view, supports the conclusion that Couch’s guilty plea was a pragmatic decision, as opposed to reflecting a true acceptance of responsibility for his crimes. Couch’s guilty plea was given in exchange for assurances that no other charges would be brought against him related to his alleged abuse of others, presumably including, if not necessarily limited to, J.M. and A.B. A.B.’s testimony would have supported ten to fifteen Class A felony charges, and J.M.’s apparently would have supported many more. Couch also seems to lack an understanding of his crimes and the damage he has caused, referring to them at sentencing as “a mistake” and a “wrong decision.” Tr. p. 78. Finally, Couch’s claim at sentencing that “what [he] did was not something [he] could control” fatally undercuts any argument that he accepts responsibility for his actions. Couch has failed to establish that his ninety-one year sentence is inappropriate.

We affirm the judgment of the trial court.

ROBB, C.J., and BAKER, J., concur.

      . Ind.Code§ 35-42-4-3 (2011).

      . Ind.Code § 35-42-4-4(b) (2011).

      . Ind.Code § 35-42-4-4(c).

      . As previously mentioned, while Couch objected that evidence from J.M. and A.B. regarding prior molestation and attempted molestation could not be used by the trial court to enhance his sentence, he conceded that it was relevant as it related to his character. Essentially, this means that while the trial court might have been restricted in how it was able to use the evidence, we are not prevented from considering how it illustrates Couch’s character in our appellate consideration of the appropriateness of his sentence.

      . Although J.M. was not clear as to how many times he and Couch had fellated each other, he testified that they had done so frequently over a four-year period.


source: Caselaw Access Project

author: BAKER, Judge. BRADFORD, Judge,

license: Public Domain

text:
    Derek CLANTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 49A02-1203-CR-198.
    Court of Appeals of Indiana.
    Nov. 15, 2012.

      Patricia Caress McMath, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Brian L. Reitz, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAKER, Judge.

Derek Clanton was found in possession of cocaine after he was stopped and searched by an off-duty police officer who was working part-time as a security officer for an apartment complex in a high crime area of Indianapolis. The cocaine was in a small plastic bag stuffed into a pen cap, and it was discovered after the officer removed the pen cap from Clanton’s pocket during a patdown of Clanton for weapons.

Claiming the cocaine was found during an unreasonable search and seizure in violation of the United States and Indiana Constitutions, Clanton filed a motion to suppress. The trial court denied the motion, and following a bench trial, Clanton was subsequently convicted of Possession of Cocaine, a class D felony.

We conclude that the trial court erred when it admitted the cocaine into evidence because the arresting officer was not entitled to further search the contents of the pen cap after determining that the pen cap was not a weapon. Because we find this issue to be dispositive, we do not specifically address whether the initial stop and patdown were proper under the circumstances presented here. In reaching this decision, however, we also conclude that the Fourth Amendment does not categorically fail to apply to off-duty police officers working as security officers on private property.

Accordingly, we reverse the judgment of the trial court.

FACTS

On April 29, 2011, Officer Michael Price and Officer McFadden of the Indianapolis Metropolitan Police Department (IMPD) were off duty and working part-time as security officers for an apartment complex in Marion County. The apartment complex, which Officer Price later testified is “not well lit” and in “a very well known high crime area [with a] lot of guns, a lot of weapons in that area at all times[,]” employed the officers in part to enforce its strict no-loitering policy on its property. Tr. p. 5. Although the officers were off duty and purportedly working solely for the apartment complex, they wore their full IMPD uniforms and carried their IMPD-issued sidearm revolvers and ta-sers. The officers were also equipped with their department radios, which enabled them to “contact anyone in the city by radio.” Id. at 12.

At approximately 11:15 p.m., Officer Price and Officer McFadden were patrolling the apartment complex on foot when they observed three black men, one of whom was Clanton, standing outside a resident’s doorway for roughly five to fifteen seconds. Believing the men to be loitering, the officers immediately approached them. The men turned their backs as the officers approached. One of the officers asked what the men were doing, and Officer Price later testified that he could not recall whether he or Officer McFadden also verbally identified themselves as police officers at that time. One of the men fled on foot, and Officer McFadden gave chase.

The other two men, including Clanton, remained and followed all of Officer Price’s directions. Neither made any furtive movements or threatened Officer Price in any way. Nonetheless, Officer Price “immediately” withdrew his taser and instructed both men to place their hands on the wall. Tr. p. 10. He then proceeded to perform a patdown search of each man for weapons.

When Officer Price patted down Clan-ton, he felt a sharp object in Clanton’s right front pocket. Officer Price could not determine the identity of the object while it was in Clanton’s pocket, so he removed the object. Officer Price then saw that the object was a pen cap. Inside the pen cap was a clear plastic baggie, which Officer Price removed, and inside the baggie was a white powder that Officer Price believed to be narcotics. Officer Price then arrested Clanton.

Clanton was charged with possession of cocaine as a class D felony, and Clanton filed a motion to suppress the cocaine from being admitted as evidence at his trial. On December 1, 2011, the trial court held an evidentiary hearing during which Officer Price testified about the events leading up to Clanton’s arrest. About his initial reason for performing the patdown searches, Officer Price testified:

[W]hen you have two officers there, you kind of feel like you have a little bit more control. Once [Officer McFadden] was gone and one of the suspects fled, I immediately become more aware that the situation is going from, you know, good to worst and now I’m left alone with two individuals. So, what I did was immediately ... pull my taser out to try to show that, you know, I’m going to keep them under control and have them put their hands on the wall. And I went to pat-down [sic] one individual as the other one, you know, had his hands on the wall and I did that for both of them.

Tr. p. 10.

The following colloquy took place later in the hearing regarding Officer Price’s removal of the pen cap from Clanton’s pocket and the subsequent discovery of the cocaine:

[Officer Price:] Well, once I pulled it out I realized what ... the sharp object was but upon further investigation and looking at it, I seen [sic] a clear plastic baggie that, you known, obviously wasn’t stuffed down in there, it was hanging out of the pen cap. And amongst looking at that, after — I realize there’s a white powdery substance in that and that’s when, through my training and experience, [I] realized that’s a compound.
[State:] So once you pulled the pen cap out of the pocket was it immediately apparent that there were narcotics in [it?]
[Officer Price:] Yes, yes, like I say, because it was hanging out of the pen cap.

Id. at 11.

On cross-examination, the following exchange took place:

[Defense counsel:] And when you pulled it out you realized it was the top to a pen?
[Officer Price:] Yes.
[Defense counsel:] And it wasn’t until you inspected it that you found that there was contraband inside?
[Officer Price:] Well, I mean, it’s immediately apparent that there’s [sic] baggies inside it which is automatically, you know, we see that multiple times.
[Defense counsel:] When you pulled it out you didn’t know what was inside the pen cap?
[Officer Price:] No I wouldn’t have been able to tell you what was inside it no.

Id. at 18 (emphasis added).

The trial court denied Clanton’s motion to suppress. At the bench trial held on March 1, 2012, Clanton renewed his motion to suppress and objected to the admission of the cocaine into evidence. At trial, Officer Price testified, “[I] could immediately see a clear baggie that was stuffed into [the pen cap] and the excess was hanging out of the pen cap. But I didn’t know what was in the baggie.” Id. at 47-48 (emphasis added). He further stated, “I noticed the clear baggie that was stuffed into the pen cap with a lot of excess bag hanging out which I’ve seen in the past ... used to carry narcotics.” Id. at 51.

The trial court overruled Clanton’s objection to the admissibility of the evidence and found him guilty as charged of possession of cocaine as a class D felony. Clan-ton now appeals.

DISCUSSION AND DECISION

I. Standard of Review

A trial court has broad discretion in ruling on the admissibility of evidence. Shinault v. State, 668 N.E.2d 274, 276 (Ind.Ct.App.1996). We will reverse a trial court’s ruling on admissibility of evidence only when an abuse of discretion has occurred. Scott v. State, 855 N.E.2d 1068, 1071 (Ind.Ct.App.2006). An abuse of discretion occurs when the trial court’s decision is clearly against the logic and effect of the facts and circumstances before the court. Id.

II. Admissibility of Cocaine— Search and Seizure

As noted above, Clanton argues that the cocaine should not have been admitted into evidence at his trial because the officer’s seizure of it violated his constitutional right to be free from unreasonable searches and seizures. Indeed, both the Fourth Amendment to the United States Constitution and Article 1, Section 11 of the Indiana Constitution guarantee this right. Notwithstanding the nearly identical text of these guarantees, the very same police behavior could be reasonable under the federal constitution and unreasonable under the state constitution, or vice versa, because each has a distinct reasonableness analysis. See Litchfield v. State, 824 N.E.2d 356, 361 (Ind.2005) (explaining that the federal guarantee focuses on one’s reasonable expectation of privacy and setting out a three-factor balancing test for assessing reasonableness under the Indiana Constitution).

Nevertheless, evidence obtained by police action in violation of either constitution is inadmissible. See Terry v. Ohio, 392 U.S. 1, 12, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (explaining that the federal exclusionary rule is a “principal mode of discouraging unlawful police conduct”); Grier v. State, 868 N.E.2d 443, 445 (Ind.2007) (holding that the Indiana Constitution requires suppression of evidence discovered during an unconstitutional search). We review de novo the ultimate question of whether the right to be free from unreasonable searches and seizures was violated. Howard v. State, 862 N.E.2d 1208,1210 (Ind.Ct.App.2007).

A. The Federal Constitution Claims

Clanton contends that the initial stop was not justified because the officers could not reasonably suspect him of loitering or otherwise being engaged in criminal activity merely because he was standing outside a doorway for five to fifteen seconds with two other black males. Appellant’s Br. p. 7-8. He also contends that there was no basis for Officer Price to suspect that he was armed and dangerous to justify the patdown for weapons when he fully complied with Officer Price’s instructions and made no furtive or threatening actions and that, even if both the initial stop and pat-down were proper, the subsequent search exceeded the scope of a valid frisk under Terry. Id. at 11,13.

Generally, unless an exception applies, searches and seizures performed without a warrant are “per se unreasonable under the Fourth Amendment.” Shi-nault, 668 N.E.2d at 276 (citing Thompson v. Louisiana, 469 U.S. 17, 19-20, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984)) (emphasis in original). The United States Supreme Court recognized one such exception to the warrant requirement in Terry v. Ohio in holding that a police officer may briefly stop a person on less than probable cause if the officer reasonably suspects that “criminal activity may be afoot.” 392 U.S. at 30, 88 S.Ct. 1868. Moreover, Terry held that if the officer reasonably suspects that the stopped person may be armed and dangerous, the officer may “conduct a carefully limited search of the outer clothing” of the individual for the sole purpose of locating weapons that could be used against the officer. Id. However, this limited search is intended only to satisfy an officer’s peace of mind that an individual is not armed so that the officer can safely make inquiries of the individual at close range; it is not intended to give officers free reign to conduct an unbridled search for any contraband a person may be carrying. Minnesota v. Dickerson, 508 U.S. 366, 373, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Whether a Terry stop or frisk is justified, as well as the accepted degree and scope of these limited exceptions to the warrant requirement, is based upon the totality of the circumstances. Illinois v. Wardlow, 528 U.S. 119, 136, 120 S.Ct. 673,145 L.Ed.2d 570 (2000).

1. Applicability of the Fourth Amendment to Off Duty Police Officers Acting as Security Guards

Before proceeding to the merits of Clan-ton’s claims, we will first address the State’s contention that the Fourth Amendment was not implicated by Officer Price’s actions. See Scott, 855 N.E.2d at 1073-74 (finding that an off-duty police officer working as a security guard on private property was entitled to stop a suspected loiterer and inquire about his interest in the property without implicating the Fourth Amendment). To be sure, there are some situations where the actions of police officers are not implicated by the Fourth Amendment. See Clarke v. State, 868 N.E.2d 1114, 1118 (Ind.2007) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (explaining that “the Fourth Amendment is not triggered unless an encounter between a law enforcement officer and a citizen ‘loses its consensual nature’ ”).

Whether or not a police officer’s actions are subject to the Fourth Amendment while the officer is off duty depends on the “nature of the acts” that the officer is performing. See Tapp v. State, 406 N.E.2d 296, 302 (Ind.Ct.App. 1980) (finding that an out-of-uniform, off-duty police officer working as private security was performing his official law enforcement duties when he identified himself as a police officer, displayed his badge, and advised a woman she was under arrest pursuant to Indiana law). In this instance, the record demonstrates that Officer Price was acting as a law enforcement officer during this investigation. More specifically, Officer Price was wearing his full police uniform, complete with his badge, gun, taser, and radio. Tr. p. 12-13. Although Officer Price may not have verbally identified himself as a police officer, id. at 36, 43, it seems likely that someone being approached by two men wearing full police uniforms would assume that the men were acting in a state-sanctioned law enforcement capacity and not as security officers for the apartment complex. Moreover, after one of Clanton’s companions fled, Officer Price ordered the two remaining men to put their hands on the wall and performed a patdown search of the men while brandishing his taser for officer safety. Id. at 10. These actions are consistent with Officer Price’s law enforcement training, but they would not otherwise be available to a private security guard. See Lemon v. State, 868 N.E.2d 1190,1193-96 (Ind.Ct.App.2007). Thus, we conclude that although Officer Price was off duty and on private property, the Terry stop and frisk effectuated by Officer Price comes within the auspices of Fourth Amendment protections.

2. The Stop and Frisk

Clanton challenges the propriety of the officers’ initiation of the stop and the subsequent patdown, claiming that these actions were improper under the Fourth Amendment. However, we need not address these contentions because, for the reasons discussed below, we find that the search of the pen cap exceeded the parameters that Terry and its progeny permit.

As noted above, the purpose of a protective search authorized by Terry “is not to discover evidence of a crime, but rather to allow the officer to pursue his investigation without fear of violence.” Dickerson, 508 U.S. at 373, 113 S.Ct. 2130. During this limited search, an officer is permitted to remove an item that feels like a weapon from an individual’s outer clothing to determine whether the item is in fact a weapon. Shinault, 668 N.E.2d at 277. In addition, the “plain-feel doctrine” approved by Dickerson permits an officer to remove non-weapon contraband during a Terry frisk if the contraband is detected during an initial patdown for weapons and if the incriminating nature of the contraband is immediately ascertained by the officer. Harris v. State, 878 N.E.2d 534, 538-39 (Ind.Ct.App.2007).

However, our Supreme Court has held that “the reasonable suspicion which gives authority to a Terry stop does not, without more, authorize the examination of contents of items carried by the suspicious person.” Berry v. State, 704 N.E.2d 462, 466 (Ind.1998). Thus, if an officer determines that an item is not a weapon and the officer cannot immediately ascertain whether or not the item is contraband, the search of that item must stop. See, e.g., Granados v. State, 749 N.E.2d 1210, 1215 (Ind.Ct.App.2001) (holding that an illegal search occurred when an officer discovered cocaine by unfolding a five-dollar bill that had fallen from an individual’s sock during a patdown for weapons because “[o]nce the five-dollar bill fell to the ground, [the officer] could have simply covered the bill with his shoe or kicked it out of reach and completed his patdown search ... without fear of being injured by any weapons it may have contained”).

Clanton contends that Officer Price went beyond the permissible scope of a Terry frisk when, after removing the pen cap from Clanton’s pocket, he determined that the item was not a weapon but continued to examine it, ultimately discovering that the pen cap held a baggie containing cocaine. Appellant’s Br. p. 13. In support of this proposition, Clanton directs us to Harris and Jackson v. State, 669 N.E.2d 744 (Ind.Ct.App.1996). Appellant’s Br. p. 12-13. In each of these cases, an officer was justified in removing a pill bottle from an individual’s outer clothing on the basis that the hard object felt by the officer might be a weapon. Harris, 878 N.E.2d at 538; Jackson, 669 N.E.2d at 748. However, the officer in each case then overstepped the bounds of Terry by further manipulating the pill bottle, which in turn led to the discovery of cocaine. Harris, 878 N.E.2d at 537, 539; Jackson, 669 N.E.2d at 746, 749.

In our view, the dispositive fact is not whether a container is open or closed, but whether the illicit nature of an item was immediately apparent to the officer or apparent only through further manipulation. See Dickerson, 508 U.S. at 379,113 S.Ct. 2130 (analogizing the plain-feel doctrine to the plain-view doctrine as limited by Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987), which held that the moving of stereo equipment to check serial numbers was an impermissible search under the Fourth Amendment absent probable cause to suspect the equipment was stolen when “the incriminating character of the stereo equipment was not immediately apparent”).

Here, once Officer Price discovered that the sharp item in Clanton’s pocket was a pen cap, he had dispelled his suspicion that the item was a weapon. Indeed, Officer Price testified that he kept the pen cap, searched it, and seized its contents because, “upon further investigation and looking at it,” he saw a baggie hanging from the pen cap, and based on previous experiences of finding narcotics in baggies in pen caps, he suspected that this baggie contained narcotics. Tr. p. 11, 18, 47-48, 51. Officer Price also admitted numerous times that he could not tell what was inside the baggie when he first observed it hanging out of the pen cap. Id. at 18, 48. In fact, Officer Price realized that the baggie contained cocaine only upon closer examination. Id. at 11. Thus, like in Harris and Jackson where the illicit nature of the pill bottles was not immediately apparent to the investigating officers, here the contraband nature of the contents of the pen cap was not immediately apparent to Officer Price. As a result, the discovery of the cocaine violated Clanton’s right to be free from unreasonable searches under the Fourth Amendment, and the trial court erred in admitting the cocaine into evidence. Thus, Clanton’s conviction cannot stand.

The judgment of the trial court is reversed.

ROBB, C.J., concurs.

BRADFORD, J., concurs in part and dissents in part with opinion.

BRADFORD, Judge,

concurring in part and dissenting in part.

I agree with the majority that the stop conducted by Officer Smith implicated the constitutional protections provided by the Fourth Amendment and Article I, Section 11. However, I do not believe that either the stop or the subsequent search violated those constitutional protections. As such, I concur in part and respectfully dissent in part.

I. Admission of Evidence

Clanton contends that the trial court abused its discretion in admitting the evidence stemming from the allegedly unconstitutional stop and search of his person.

Our standard of review for rulings on the admissibility of evidence is essentially the same whether the challenge is made by a pre-trial motion to suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-75 (Ind.Ct.App.2002), reh’g denied, trans. denied. We do not reweigh the evidence, and we consider conflicting evidence most favorable to the trial court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind.Ct.App.2005), trans. denied. We also consider uncontroverted evidence in the defendant’s favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind.Ct.App.2007).

A trial court has broad discretion in ruling on the admissibility of evidence. Washington v. State, 784 N.E.2d 584, 587 (Ind.Ct.App.2003) (citing Bradshaw v. State, 759 N.E.2d 271, 273 (Ind.Ct.App.2001)). Accordingly, we will reverse a trial court’s ruling on the admissibility of evidence only when the trial court abused its discretion. Id. (citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is clearly against the logic and effect of the facts and circumstances before the court. Id. (citing Huffines v. State, 739 N.E.2d 1093, 1095 (Ind.Ct.App.2000)).

Clanton argues that the trial court abused its discretion in admitting the evidence stemming from the stop because the evidence was discovered in violation of his constitutional rights under both the Fourth Amendment and Article I, Section 11. In raising these claims, Clanton challenges the legality of both the stop and the subsequent warrantless search of his person.

A. The Fourth Amendment

The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable searches or seizures shall not be violated.” The Fourth Amendment prohibits unreasonable searches and seizures. Burkes v. State, 842 N.E.2d 426, 429 (Ind.Ct.App.2006), trans. denied.

The Fourth Amendment regulates non-consensual encounters between citizens and law enforcement officials and does not deal with situations in which a person voluntarily interacts with a police officer. A full-blown arrest or a detention that lasts for more than a short period of time must be justified by probable cause. A brief investigative stop may be justified by reasonable suspicion that the person detained is involved in criminal activity. Terry v. Ohio, 392 U.S. 1, 31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Finger v. State, 799 N.E.2d 528, 532 (Ind.2003). A police officer may stop and briefly detain a person for investigative purposes under Terry so long as the officer has a reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Bratcher v. State, 661 N.E.2d 828, 830 (Ind.Ct.App.1996) (citing Terry, 392 U.S. 1, 88 S.Ct.1868).

1. Legality of the Stop

Because stopping an individual and limiting his freedom to leave is a seizure under the Fourth Amendment, “police may not initiate a stop for any conceivable reason, but must possess at least reasonable suspicion that a traffic law has been violated or that other criminal activity is taking place.” Meredith v. State, 906 N.E.2d 867, 869 (Ind.2009). Reasonable suspicion exists where the facts known to the officer at the moment of the stop, together with the reasonable inferences arising therefrom, would cause an ordinarily prudent person to believe that criminal activity has occurred or is about to occur. Burkes, 842 N.E.2d at 429-30. In deciding whether there was reasonable suspicion for a stop, we look to the totality of the circumstances of a given case. Id. at 430.

In the instant matter, the record demonstrates that at the time of the stop, Officer Price had reasonable suspicion to believe that Clanton was engaging in criminal activity. Officer Price was working security for the apartment complex located in a high crime area when he saw Clanton and two other men standing outside an apartment door in violation of the apartment complex’s “no loitering” policy. See Ross v. State, 844 N.E.2d 537, 542 (Ind.Ct.App.2006) (providing that presence in a high crime area is a factor that can be considered at the time of the stop); see also Parker v. State, 662 N.E.2d 994, 999 (Ind.Ct.App.1996) (providing that officer had reasonable suspicion to stop and pat-down individual because officer knew that the area was known for frequent drug activity, and that firearms were frequently present in drug transactions). Officer Price was familiar with the apartment complex’s “no loitering” policy, and he testified that the sole purpose of his presence at the apartment complex was to enforce the “no loitering” policy. The record does not contain any evidence suggesting that Clayton and the other men had a valid purpose for standing outside the apartment door.

As Officer Price and another officer approached the three men, the men turned their backs on the officers and one man fled the scene. The flight by one of the three men raised Officer Price’s suspicion that the men, who were loitering at 11:15 p.m. in an area known to have high levels of crime and drug activity, were engaged in criminal activity. See Platt v. State, 589 N.E.2d 222, 226 (Ind.1992) (providing that flight at the sight of police is undeniably suspicious behavior). In addition, the other officer’s act of following the fleeing man left Officer Price outnumbered by two unknown individuals. Officer Price witnessed a violation of the “no loitering” policy and the flight by one of the individuals standing with Clanton before initiating the stop. As such, I would conclude that the stop was valid and did not violate Clanton’s rights under the Fourth Amendment. See Burkes, 842 N.E.2d at 430.

2. Legality of Search

Having concluded that the initial stop did not violate Clanton’s Fourth Amendment rights, we must consider whether the subsequent search of his person was permissible.

A judicially issued search warrant is a condition precedent to a lawful search. “Searches conducted outside the judicial process are per se unreasonable unless subject to a few well delineated exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). The state has the burden of demonstrating the existence of one of these exceptions. One such exception to the warrant requirement is: when a police officer makes a Terry stop, if he has reasonable fear of danger, ■he may conduct a carefully limited search of the outer clothing of the suspect in an attempt to discover weapons that might be used to harm him. Shinault v. State, 668 N.E.2d 274, 277 (Ind.Ct.App.1996). An officer’s authority to conduct a pat down search is dependent upon the nature and extent of his particularized concern for his safety. Wilson v. State, 745 N.E.2d 789, 792 (Ind.2001).

Williams v. State, 754 N.E.2d 584, 587-88 (Ind.Ct.App.2001). In conducting a Terry search, the officer need not be absolutely certain that an individual is armed but only that a reasonably prudent man in the same circumstances would be warranted in believing that his safety or that of others was in danger. Bratcher, 661 N.E.2d at 831 (citing Terry, 392 U.S. at 27, 88 S.Ct. 1868).

Here, Officer Price testified that he conducted a limited pat-down search of Clan-ton’s outer clothing because he feared that Clanton could be armed. Again, Officer Price and another officer encountered three men loitering outside an apartment door at 11:15 p.m. in an area known to be an area with high crime and drug activity. As the officers approached, the three men turned their backs on the officers and one man fled. Officer Price was out-numbered by two unidentified individuals after the other officer followed the fleeing man. See Commonwealth v. Mack, 953 A.2d 587, 591 (Pa.Super.Ct.2008) (providing that the fact that an officer may be outnumbered is certainly a factor to be considered when determining whether an officer’s safety is at risk). The flight by the third man raised Officer Price’s suspicion that the three men might be armed or engaged in criminal activity. Officer Price testified that in light of Clanton’s act of loitering in a high crime area at 11:15 p.m., Officer Price felt it necessary to conduct the outer clothing pat-down search in order to determine whether Clanton was armed. In light of the above-stated circumstances, I would conclude that Officer Price had a reasonable fear for his safety that warranted the pat-down search.

Moreover, I do not agree that Officer Price exceeded the scope of the initial search by pulling the plastic out of the pen cap, revealing the cocaine. The record demonstrates that during the outer-clothing pat-down search, Officer Price felt a sharp object in Clanton’s pocket. Believing that the sharp object could potentially be used as a weapon, Officer Price removed the object from Clanton’s pocket, identified it as a pen cap, and immediately saw plastic sticking out of the pen cap. The plastic that was stuffed into the pen cap was immediately apparent to Officer Price. Furthermore, although it was not immediately apparent what specific drug was stored in the plastic bag in the pen cap, Officer Price testified that in his experience as a police officer, he was aware that individuals often store drugs in plastic bags stuffed in pen caps. As such, I would conclude that Officer Price did not exceed the scope of the original pat-down search by removing the plastic from the pen cap and seizing the cocaine contained within. See Williams, 754 N.E.2d at 588 (providing that a police officer may seize contraband if, during a lawful pat down of a suspect’s clothing, he feels an object whose contour or mass makes its identity immediately apparent).

B. Article I, Section 11

With respect to Article I, Section 11, Clanton again argues that the evidence discovered during search of his person should have been excluded from trial because the evidence is the fruit of an illegal stop and warrantless search of his person.

Article I, Section 11 provides, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure, shall not be violated.... ” The purpose of this article is to protect from unreasonable police activity those areas of life that Hoosiers regard as private. Moran v. State, 644 N.E.2d 536, 540 (Ind.1994). The provision must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Brown v. State, 653 N.E.2d 77, 79 (Ind.1995). In resolving challenges asserting a Section 11 violation, courts must consider the circumstances presented in each case to deter-inine “whether the police behavior was reasonable.” Id. We place the burden on the State to show that under the totality of the circumstances its intrusion was reasonable. State v. Bulington, 802 N.E.2d 435, 438 (Ind.2004).

State v. Quirk, 842 N.E.2d 334, 339-40 (Ind.2006). Thus, we are called upon to determine whether the stop and subsequent pat down search were reasonable under the totality of the circumstances. See id. at 340.

1. Legality of the Stop

In Indiana, it is well-settled that a police stop and brief detention of an individual is reasonable and permitted under Article I, Section 11 if the officer reasonably suspects that the individual engaged in, or is about to engage in, illegal activity. See Quirk, 842 N.E.2d at 340 (citing Mitchell v. State, 745 N.E.2d 775, 786 (Ind.2001)).

A stop is lawful if there is an objectively justifiable reason for it, and the stop may be justified on less than probable cause. [Jackson v. State, 785 N.E.2d 615, 619 (Ind.Ct.App.2003), trans. denied.] If there is an objectively justifiable reason, then the stop is valid whether or not the police officer would have otherwise made the stop but for ulterior suspicions or motives. Id.

Turner v. State, 862 N.E.2d 695, 699-700 (Ind.Ct.App.2007).

For the reasons discussed above, I believe that Officer Price had an objectively justifiable reason for stopping Clanton. Officer Price had specific knowledge of the apartment complex’s “no loitering” policy, and he testified that the sole reason for his presence at the apartment complex was to enforce that policy. Officer Price and another officer observed Clanton and two other men violating the policy by loitering outside an apartment door in an area known to have a high level of crime and drug activity. See Ross, 844 N.E.2d at 542 (providing that presence in a high crime area is a factor that can be considered at the time of the stop); see also Parker, 662 N.E.2d at 999 (providing that officer had reasonable suspicion to stop and pat-down individual because officer knew that the area was known for frequent drug activity, and that firearms were frequently present in drug transactions). Nothing in the record indicated that the men had a valid purpose for standing outside the apartment door. As Officer Price and the other officer approached the three men, the men turned their backs on the officers and one man fled the scene, leaving Officer Price outnumbered by the two unknown men. Again, the flight by one of the men raised Officer Price’s suspicion that the men were engaged in criminal activity. See Platt, 589 N.E.2d at 226 (providing that flight at the sight of police is undeniably suspicious behavior). Because I believe that these circumstances give Officer Price a justifiable reason for stopping Clanton, I would conclude that the stop was valid and did not violate Clanton’s rights under Article I, Section 11.

2. Legality of the Search

“While almost identical to the wording in the search and seizure clause of the federal constitution, Indiana’s search and seizure clause is independently interpreted and applied.” Baniaga v. State, 891 N.E.2d 615, 618 (Ind.Ct.App.2008). Under the Indiana Constitution, the legality of a governmental search turns on an evaluation of the reasonableness of the police conduct under the totality of the circumstances. Litchfield v. State, 824 N.E.2d 356, 359 (Ind.2005). Although other relevant considerations under the circumstances may exist, our Supreme Court has determined that the reasonableness of a search or seizure turns on a balance of: 1) the degree of concern, suspicion, or knowledge that a violation has occurred, 2) the degree of intrusion the method of the search or seizure imposes on the citizens’ ordinary activities, and 3) the extent of law enforcement needs. Baniaga, 891 N.E.2d at 618. The burden is on the State to show that under the totality of the circumstances, the intrusion was reasonable. Id.

Edmond v. State, 951 N.E.2d 585, 592 (Ind.Ct.App.2011) (quoting Hathaway v. State, 906 N.E.2d 941, 945 (Ind.Ct.App. 2009), trans. denied).

In the instant matter, I believe that the circumstances demonstrate that the search was reasonable under the totality of the circumstances. As is stated above, Officer Price conducted the search of Clanton’s outer clothing because he was concerned that Clanton might be armed. Officer Price was working as a security officer at an apartment complex when he encountered Clanton and two other unknown men at approximated 11:15 p.m. The apartment complex was located in an area that was known to Officer Price to have high levels of criminal and drug activity.

The men, who were loitering at the apartment complex, turned their backs on Officer Price and the other officer when they first approached. One of the men subsequently fled and was followed by the other officer, leaving Officer Price with two unknown individuals. See Mack, 953 A.2d at 591 (providing that the fact that an officer may be outnumbered is certainly a factor to be considered when determining whether an officer’s safety is at risk). The flight of one of the men loitering with Clanton raised Officer Price’s suspicion that the men were engaged in criminal behavior. In light of these circumstances, I would conclude that Officer Price’s decision to search Clanton to determine whether Clanton was armed was reasonable.

Moreover, again for the reasons stated above, I do not believe that Officer Price exceeded the scope of a warrantless search by pulling the plastic bag out of the pen cap. During the search, Officer Price felt a sharp object in Clanton’s pocket. Officer Price removed the object from Clanton’s pocket and discovered that it was a pen cap. It was immediately apparent to Officer Price that plastic was stuck up in the pen cap, and, in his experience as a police officer, he knew that drug users commonly stored their drugs in this fashion. The fact that Officer Price did not know exactly which drug was stored in the plastic does not, in my view, render his removal of the plastic and subsequent seizure of the drugs found within unreasonable. Accordingly, I would affirm the judgment of the trial court.

      . Ind.Code § 35-48-4-6.

      . The officer who was working with Officer Price was referred to as Officer McFadden during the suppression hearing but as Officer Garrison at Clanton's trial.

      . According to Officer Price, the apartment complex’s no-loitering policy is written into its bylaws which every resident is required to review. However, there is no evidence in the record that suggests that Clanton was a resident of the apartment complex or otherwise aware of the no-loitering policy. There was also no evidence presented indicating that there are any no-loitering signs posted at the apartment complex that would have alerted Clanton of this policy.

      . The text of the Fourth Amendment, which the Indiana Constitution parallels nearly verbatim, is as follows:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Because we reverse Clanton’s conviction on the basis that he was subjected to an unreasonable search under the Fourth Amendment, we do not reach Clanton's claim that the search and seizure were unreasonable under Article 1, Section 11 of the Indiana Constitution. See Reinhart v. State, 930 N.E.2d 42, 48 n. 1 (Ind.Ct.App.2010).

      . Although we do not reach the merits of these claims, we caution that "[t]he color of one's skin, the neighborhood one happens to be in, and the fact that one turns away from the police are not sufficient, individually or collectively, to establish a reasonable suspicion of criminal activity.” Tumblin v. State, 664 N.E.2d 783, 785 (Ind.Ct.App.1996).

      . As an aside, we note that Clanton concedes, and we agree, that if the initiation of the patdown was proper, Officer Price would have been justified in removing a sharp item from his outer clothing to dispel his fear that the item could be used as a weapon. Appellant’s Br. p. 13.


author: BRADFORD, Judge. BAKER, Judge,

text:
    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 Ash-craft 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 Ash-craft’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 Ash-craft 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, [KT.’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 La-porte 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 in-formations 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.

“[WJhere 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. See Ind.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] protects] 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 N.E.2d 586, 587 (Ind.Ct.App.2000)). “[It] also ‘strike[s] a balance between an individual’s interest in repose and the State’s interest in having sufficient time to investigate and build its case.’” Id. (quoting Heitman v. State, 627 N.E.2d 1307, 1309 (Ind.Ct.App.1994)). “ ‘[A]n information alleging a time outside the statute of limitations which does not allege facts sufficient to constitute an exception to the statute is subject to a motion to dismiss.’ ” Reeves v. State, 938 N.E.2d 10, 16 (Ind.Ct.App.2010), trans. denied (quoting Greichunos v. State, 457 N.E.2d 615, 617 (Ind.Ct.App.1983)).

Lebo claims that, because she is charged with failing to report child abuse or neglect between August 1, 2007, and October 28, 2008, the two-year statute of limitations expired no later than October 28, 2010, well before the State filed its charging informations on September 6, 2011. The State claims that its charges were timely filed because the statute of limitations was tolled by virtue of concealment and, alternatively, because the crime of failure to report is a continuing offense.

A. Whether the Statute of Limitations Was Tolled

“Indiana Code section 35^11-4-2(h)(2) ... tolls a statute of limitations if ‘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[.]’ ” Sloan, 947 N.E.2d at 920. “[W]hen the State relies on this exception, it must plead the circumstances of the concealment exception in the information so that the ‘defendant is apprised of the facts upon which the State intends to rely and may be prepared to meet that proof at trial.’ ” Reeves, 938 N.E.2d at 17 (quoting Willner v. State 602 N.E.2d 507, 509 (Ind.1992)).

In its charging informations, the State alleges that Lebo’s offenses were “concealed by ... [Lebo] instructing her players during the 2007 and 2008 seasons not to discuss team matters or rumors with anyone.” Appellant’s App. pp. 11, 13. The State further alleges that it “did not have evidence sufficient to file charges until an investigative report was received after October 22, 2010, and [it] could not have discovered sufficient evidence through due diligence.” Appellant’s App. pp. 11, 13. Lebo contends that these allegations are not sufficiently specific to allow Lebo to prepare a concealment defense. We, however, agree with the trial court; the allegations of concealment are sufficient to bring the charging informations into compliance with the statute of limitations.

The charging informations explicitly allege that Lebo concealed her failure to report, include facts constituting the act of concealment upon which that allegation is based, and provide a general timeframe in which the alleged concealment occurred. Further, these allegations are supported by Detective Robinson’s testimony at the probable cause hearing. In addition to testifying that Lebo instructed her players not to discuss the Ashcraft and K.T. situation with others, Detective Robinson testified that the ISP did not begin to suspect Lebo’s failure to report until January 2010, the month after Ashcraft’s arrest. Moreover, Detective Robinson testified that the LaPorte County Prosecutor’s Office could not have discovered sufficient evidence to charge Lebo with failure to report until it received the ISP’s investigation report on October 23, 2010. The trial court did not abuse its discretion in determining that concealment tolled the statute of limitations.

Lebo also contends that the facts alleged in the charging informations do not constitute concealment and that the State failed to exercise the due diligence necessary to invoke the concealment exception to toll the statute of limitations. On this issue, we again agree with the trial court. “ ‘Concealment is a fact-intensive issue.’ ” Appellant’s App. p. 7 (quoting Reeves, 938 N.E.2d at 17). See Willner, 602 N.E.2d at 509. Because questions of fact are not properly raised on a motion to dismiss, Delagrange, 951 N.E.2d at 594-95, we cannot conclude that the trial court abused its discretion in denying Lebo’s motion on this basis.

B. Whether Failure to Report Is a Continuing Offense

As an alternative, the State argues that the crime of failure to report is a continuing offense, and therefore, the statute of limitations did not begin to run until the LaPorte County Prosecutor’s Office received the ISP’s investigation report on October 23, 2010. The doctrine of continuing offenses holds, “Where there is a continuing duty to do some act, the statute of limitations does not apply where some portion of the offense is within the period of limitations.” DeHart v. State, 471 N.E.2d 312, 315 (Ind.Ct.App.1984). In other words, “The offense continues as long as the duty persists! ] and there is a failure to perform that duty.” Wright v. Superior Court, 15 Cal.4th 521, 525, 63 Cal.Rptr.2d 322, 936 P.2d 101 (1997). An offense should not be deemed continuing “unless the explicit language of the substantive criminal statute compels such a conclusion, or the nature of the crime involved is such that [the legislature] must assuredly have intended that it be treated as a continuing one.” Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970).

We conclude that Indiana’s failure to report child abuse or neglect statute contemplates the crime as a continuing offense. Although the statute does not utilize the terms “continuing” or “continuous,” it includes the following provision to that effect: “This chapter does not relieve an individual of the obligation to report on the individual’s own behalf, unless a report has already been made to the best of the individual’s belief.” Ind. Code § 31-33-5-3. An individual who has not been “relieved” of his duty to report must be considered to have a continuing duty to do so. To conclude otherwise effectively limits the duty to report to the day on which a “reason to believe” arises. Such a conclusion would frustrate the statute’s asserted purpose to “provide protection for an abused or a neglected child from further abuse or neglect.” Ind.Code §. 31-33-1-1 (emphasis added). To permit an individual with a duty to report to avoid prosecution for failure to report because that individual’s failure was not discovered within 730 days does nothing to protect a child who may still be the victim of abuse on day 731 or beyond.

Lebo contends that, because that statute requires a person with a duty to report to “immediately make an oral report....” Ind.Code § 31-33-5-4 (emphasis added), the offense cannot be considered continuing. But although “the violation is complete at the first instance the elements are met[, i]t is nevertheless not completed as long as the obligation remains unfulfilled. ‘The crime achieves no finality until such time.’ ” Wright, 15 Cal.4th at 526, 63 Cal. Rptr.2d 322, 936 P.2d 101 (quoting U.S. v. Cores, 356 U.S. 405, 409, 78 S.Ct. 875, 2 L.Ed.2d 873 (1958)). Lebo’s contention merely recognizes one part of this duality.

II. Whether the Charging Informa-tions Are Sufficiently Specific

Lebo argues that the trial court abused its discretion in denying her motion to dismiss because the charging informations failed to allege facts with sufficient specificity to apprise Lebo of the charges against her. “The purpose of the charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.” State v. Laker, 939 N.E.2d 1111,1113 (Ind.Ct.App.2010), trans. denied (citing Ben-Yisrayl v. State, 738 N.E.2d 253, 271 (Ind.2000)). For this reason, Indiana Code section 35-34-l-2(a)(4) requires that an indictment or information “allege the commission of an offense by ... setting forth the nature and elements of the offense charged in plain and concise language without unnecessary repetition.” Ind.Code § 35-34-l-2(a)(4). The indictment or information also must contain “a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Ind.Code § 35-34-1-2(d). “The court may, upon motion of the defendant, dismiss the indictment or information ... [if it] does not state the offense with sufficient certainty.” Ind.Code § 35-34-l-4(a)(4).

Here, the trial court found that that “the charging information[s] together with the oral testimony presented in the ... probable cause hearing has sufficient facts and circumstances to inform [Lebo] of the particular offenses for which she is charged in order to allow her to prepare a defense.” Appellant’s App. pp. 9-10. We agree. The charging informations track the language of the statutes on which the charges are based and, in conjunction with Detective Robinson’s probable cause testimony, inform Lebo of the identity of both the victim and the perpetrator, the relative time frame in which Lebo allegedly had reason to believe K.T. had been the victim of Ashcraft’s abuse or neglect, and the facts and circumstances giving rise to that reason to believe.

Specifically, the facts allege that Lebo observed Ashcraft “leaning up against between the legs” of K.T. while watching a movie and having his arm around K.T. while sharing food with her during a bus ride. Appellant’s App. p. 59. Although specific dates are not given, Detective Robinson testified that Lebo documented these observations in Ashcraft’s personnel file, where she also noted her personal discomfort with Ashcraft’s conduct. Ash-craft’s personnel file is clearly identified as “evidence collected” in the ISP investigation report, Appellant’s App. p. 46, and Lebo makes no argument that it will be inaccessible during discovery. Lebo is also aware that Ashcraft was convicted of sexual misconduct with a minor and child seduction. On these facts, we cannot say that the trial court abused its discretion in denying Lebo’s motion to dismiss for lack of sufficient specificity.

We add that Lebo’s claims in support of her sufficient specificity argument are without merit. First, Lebo’s claim that her alleged observations do not give rise to a “reason to believe” presents a question of fact to be resolved at trial and is not properly raised on a motion to dismiss. Delagrange, 951 N.E.2d at 594-95. Second, Lebo’s claim that the time frame alleged fails to identify whether K.T. was fifteen or sixteen at the time of Lebo’s observations is misplaced. The failure to report statute does not require that an individual have actual knowledge of child abuse or neglect. Rather, a duty to report is imposed on an individual who merely has “reason to believe” a child is the victim of such a crime. Ind.Code §§ 31-33-5-1, 31-33-5-2 (2011). See Ind.Code § 31-33-1-1(1) (stating one of the purposes of a duty to report is “to encourage effective reporting of suspected or known incidents of child abuse or neglect” (emphasis added)). Therefore, the conduct allegedly observed by Lebo need not satisfy the elements of sexual misconduct with a minor, Ind.Code § 35-42-4-9 (requiring a victim less than sixteen years of age), or those of child seduction, Ind.Code § 35-42-4-7 (requiring a victim at least sixteen years of age).

The judgment of the trial court is affirmed.

ROBB, C.J., concurs.

BAKER, J., concurs in part and dissents in part with opinion.

BAKER, Judge,

concurring in part and dissenting in part.

I agree with the majority’s determination that the statute of limitations had not run with respect to the State’s ability to bring charges against Lebo. More particularly, I believe that Lebo’s concealment, properly alleged in the charging informa-tions, tolled the statute of limitations as it applied to her such that the charges filed against her in September 2011 were not time-barred. I part ways only briefly on this issue to note my belief that the tolling ceased when the State had probable cause to arrest Ashcraft, because at this time the State could have discovered through due diligence whether Lebo, in her role as KT.’s coach and as Ashcraft’s superior, had failed to make a report required under Indiana Code sections 31-33-5-1 or 31 — 33— 5-2. Under either interpretation of when the tolling stopped, however, the charges against Lebo were brought within the two-year statute of limitations.

Because by all accounts the statute of limitations had not run, I believe that it is unnecessary for this Court to reach whether our legislature contemplated or created the offense of failure to report child abuse or neglect as a continuing offense. Nevertheless, because the majority reaches this issue, I must note that I cannot agree with the majority’s characterization of the failure to report child abuse or neglect as a continuing offense that never invokes the statute of limitations.

More than thirty years ago, our Supreme Court commented on the fundamental fairness of having and enforcing statutes of limitations by saying:

Formerly, statutes of limitations were looked upon with disfavor in that they are invariably in derogation of the common law. Now, however, the judicial attitude is in favor of statutes of limitations, rather than otherwise, since they are considered as statutes of repose and as affording security against stale claims. Consequently, except in the case of statutes of limitations against the government, the courts are inclined to construe limitation laws liberally, so as to effect the intention of the legislature.

Shideler v. Dwyer, 275 Ind. 270, 273, 417 N.E.2d 281, 284 (1981) (internal quotation marks and citation omitted). As aptly highlighted by the majority, our Supreme Court recently reiterated this rationale by stating that the purpose of a statute of limitations in a criminal case is to “protect 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 N.E.2d 586, 587 (Ind.Ct.App.2000)). In my view, these concerns remain ever-present where the alleged crime consists of a failure to act, as is the case here, as opposed to a crime with an overt actus reus. Indeed, in such cases there may be even more of a risk of fading memories and stale evidence.

Furthermore, unlike the majority, I do not believe that our legislature has indicated a clear intent to make failure to report child abuse or neglect a continuing offense. The State charged Lebo under Indiana Code section 31-33-22-1, which provides, “[a] person who knowingly fails to make a report required by IC 31-33-5-1 commits a Class B misdemeanor,” and “[a] person who knowingly fails to make a report required by IC 31-33-5-2 commits a Class B misdemeanor.” Ind.Code § 31-33-22-1 (emphases added). Based on this language, I believe that it is clear that the legislature intended for only one crime to result under each of the failure to report statutes. See State v. Langdon, 159 Ind. 377, 377, 65 N.E. 1, 2 (1902) (holding that the former crime of deserting one’s wife was “but one offense,” and explicitly rejecting the idea that there was a new crime of desertion each day the husband remained absent).

Moreover, I do not believe that Indiana Code section 31-33-5-3 clearly expresses the legislature’s intent to make failure to report child abuse or neglect a continuing offense by its provision that an individual is not “relieved” of the duty to make a report unless that individual believes a report has already been made. Indeed, the meaning of Indiana Code section 31-33-5-3 becomes apparent when it is analyzed in the context of its surrounding statutes. Indiana Code section 31-33-5-1, the statute that imposes the general duty to report child abuse, provides that “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.” Such a report must be made “immediately.” I.C. § 31-33-5-4. Indiana Code section 31-33-5-2 imposes an additional duty on individuals acquiring that “reason to believe” in certain professional capacities to also “immediately” notify the person in charge of the individual’s employing institution, who should then report the alleged abuse or neglect. In this context, it is clear that Indiana Code section 31-33-5-3 operates, not to impose a continuing duty to report, but to be clear that once the initial individual with the “reason to believe” notifies the person in charge of the employing institution, that initial individual must still make a separate report to the designated authorities if the person in charge would for any reason fail to make the institution’s report as required by Indiana Code section 31-33-5-2.

Finally, in my view, any intent of the legislature to make the failure to report child abuse or neglect a continuing offense is at best ambiguous, and it “[i]t is well-established that penal statutes must be strictly construed against the state.” Sunday v. State, 720 N.E.2d 716, 719 (Ind.1999). When this principle is added to the fact that statutes of limitations are favored in Indiana and the doctrine of continuing offense is meant to be an extremely limited doctrine, I do not believe this Court can reasonably interpret the failure to report child abuse or neglect as a continuing offense.

I am sensitive to the fact that if someone fails to make a report, child abuse or neglect could continue for every day that the report goes unmade. See op. at 1037. However, we must also be reminded that the person who has “reason to believe” that child abuse or neglect has occurred and fails to report that abuse or neglect is not the person inflicting harm on the child. Yet the statute of limitations does not fail to apply to those who commit heinous crimes against children.

Notwithstanding my view that the statute of limitations was tolled by Lebo’s acts of concealment, I believe that the trial court erred in denying Lebo’s motion to dismiss. Neither the State’s charging information nor the evidence presented at the probable cause hearing alleged facts that, even if taken as true, would suggest that Lebo had “reason to believe” that K.T. was the victim of child abuse. “Reason to believe,” for the purposes of the failure to report statute, has been defined by our legislature as “evidence that, if presented to individuals of similar background and training, would cause the individuals to believe that a child was abused or neglected.” Ind.Code § 31-9-2-101. There is no corresponding statutory definition for “believe,” but this term is defined by Black’s Law Dictionary as “[t]o feel certain about the truth of; to accept as true.” Black’s Law Dictionary (9th ed. 2009).

Here, the facts demonstrated by the State to have been known by Lebo — that Ashcraft had leaned on KT.’s legs during a movie, that Ashcraft had his arm around K.T. and shared yogurt with her during a bus trip, or that some parents had complained to Lebo that Ashcraft and K.T. appeared “almost like they were boyfriend and girlfriend” — would not, in my view, cause an individual of similar background and training as Lebo to “believe” that Ashcraft was engaging in illegal sexual activity with K.T. Appellant’s App. p. 59, 64. Although these acts may be viewed in hindsight as suggestive of Ashcraft’s caddish behavior, at the time Lebo knew these facts, there is no way that a person in a similar position as Lebo would “feel certain” that Ashcraft was engaging in illegal sexual acts with K.T.

While Lebo need not have observed conduct of Ashcraft and K.T. satisfying the elements of a particular sex crime statute before she can be said to have a duty to report child abuse or neglect, see op. at 1038-39, neither does the duty to report attach merely because Lebo felt uncomfortable about some of Ashcraft’s actions. Importantly, the record is void of anyone actually telling Lebo that Ashcraft and K.T. were having a sexual relationship. Based on the knowledge that Lebo actually had, her actions of documenting her discomfort with Ashcraft’s behavior in his personnel file, intervening to stop inappropriate behavior she witnessed, and seeking Ashcraft’s resignation were reasonable. Although we may hope that individuals make a report any time child abuse or neglect is suspected, the duty to report has not been imposed by our legislature until one has “reason to believe” that abuse or neglect has occurred. My view is that there was no evidence that such “reason to believe” existed here, and therefore, the trial court should have granted Lebo’s motion to dismiss.

Accordingly, I dissent.

      . Although one crime can be committed under each of these statutes, Indiana Code section 31-33-22-i makes clear that a penalty for failing to comply with Indiana Code section 31-33-5-2 can be in addition to the penalty imposed for a violation of Indiana Code section 31-33-5-1.


author: MATHIAS, Judge.

text:
    Darius JIGGETTS, Appellant, v. STATE of Indiana, Appellee.
    No. 71A03-1202-CR-59.
    Court of Appeals of Indiana.
    Sept. 20, 2012.
    Ordered Published Oct. 12, 2012.
    Julie P. Verheye, Mishawaka, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Darius Jiggetts (“Jiggetts”) appeals the trial court’s imposition of consecutive sentences following the revocation of his probation. We affirm.

Facts and Procedural History

In February 2010, Jiggetts pleaded guilty to Class B felony burglary after committing a home invasion. The following month, the trial court sentenced him to a six-year suspended sentence with three years on probation. In July 2010, Jiggetts violated the conditions of his probation, and the trial court sentenced him to six months incarceration. When he was released, Jiggetts was returned to probation.

In July 2011, Jiggetts robbed a bank. As a result of the robbery, the State filed a petition to revoke his probation a second time. In September 2011, Jiggetts was convicted in federal court for the bank robbery. The federal court sentenced him for the bank robbery conviction on January 9, 2012. Tr. p. 40. On January 20, 2012, the State held an evidentiary hearing on the second petition to revoke probation. Following the hearing, the trial court revoked Jiggetts’ probation, imposed the balance of his burglary sentence, and ordered the burglary sentence to run consecutive to the bank robbery sentence. Jiggetts appeals his sentence.

Discussion and Decision

Jiggetts argues that the trial court erred in sentencing him. Specifically, his sole contention is that the trial court improperly ordered the burglary sentence to run consecutive to the bank robbery sentence.

Indiana Code section 35-50-l-2(d), which provides as follows, is dispositive:

If after being arrested for one (1) crime, a person commits another crime:

(1) before the date the person is discharged from probation, parole, or a term of imprisonment imposed for the first crime ...
the' terms of imprisonment for crimes shall be served consecutively regardless of the order in which the crimes are tried and the sentences are imposed.

Here, Jiggetts was on probation for the burglary conviction when he committed the bank robbery. Under these circumstances, pursuant to the statute, the terms of imprisonment for the two offenses must be served consecutively.

We addressed this issue in Harris v. State, 598 N.E.2d 639 (Ind.Ct.App.1992), trans. denied. There, Harris pleaded guilty to burglary in March 1991 and was placed on probation for two years. Two months later, Harris committed another burglary and was sentenced to fifteen years. After Harris was sentenced for the second burglary, the State filed a petition to revoke his probation for the first offense. In January 2002, the trial court revoked his probation and ordered that his sentence for the first offense be served consecutively to the fifteen-year sentence for the second offense. Id.

On appeal, Harris argued that the trial court erred in ordering the sentences to run consecutively. This Court explained that the “statutory mandate is plain, and it is simple. When the circumstances described in [the statute] occur, the sentences of the offenses shall be served consecutively.” Id. at 640. We further explained that “because sentence was imposed upon the second offense before Harris’ probation had been revoked for the earlier offense, the court was not only authorized, it was required, upon revoking the probation to require that the sentences be served consecutively.” Id. The statute speaks only to commission of another “crime” while on probation or parole, or during the term of imprisonment for the “first crime.” The language makes no distinction between a federal conviction and a state conviction, and we see no logical reason to do so.

Here, as in Harris, the trial court did not err in imposing consecutive sentences.

Affirmed.

VAIDIK, J., and BARNES, J., concur.