John O. Study v. State of Indiana ( 2015 )


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  • ATTORNEY FOR APPELLANT                               ATTORNEYS FOR APPELLEE
    Deborah K. Smith                                     Gregory F. Zoeller
    Sugar Creek Law                                      Attorney General of Indiana
    Thorntown, Indiana
    Justin F. Roebel
    Deputy Attorney General
    Indianapolis, Indiana
    In the
    Indiana Supreme Court                                     Feb 04 2015, 12:51 pm
    No. 06S04-1407-CR-461
    JOHN O. STUDY,
    Appellant (Petitioner below),
    v.
    STATE OF INDIANA,
    Appellee (Respondent below).
    Appeal from the Boone County Superior Court I, No. 06D01-0710-FC-115
    The Honorable Matthew C. Kincaid, Judge
    On Petition to Transfer from the Indiana Court of Appeals, No. 06A04-1308-CR-391
    February 4, 2015
    David, Justice.
    John Study was charged with four counts of robbery, six counts of criminal confinement,
    and one count each of pointing a firearm, resisting law enforcement, and auto theft. The State also
    charged Study as a Habitual Offender. These charges resulted from four different bank robberies,
    which occurred over a year and a half. Study argues that the charge for Class B felony robbery,
    relating to the March 21, 2006 robbery should be dismissed on the grounds that it was filed outside
    of the statute of limitations period because the statutory concealment-tolling provision was
    inapplicable in his case. Thus, the statute of limitations would bar any charges related to that
    robbery from being brought after March 21, 2011. The State argues that Study’s conduct did
    conceal evidence of the offense and was sufficient to toll the statute of limitations.
    Although this Court has applied the concealment-tolling provision since the statutory
    language was changed in 1976, 1 we have not previously had the opportunity to specifically address
    what actions of the defendant are required for a court to find “concealment” sufficient to toll the
    statute of limitations. After being presented with this issue for the first time, we agree with Study.
    We hold that the trial court erred when it refused to grant Study’s motion to dismiss the March 21,
    2006 robbery count because the charge was filed outside the statute of limitations, and further hold
    that the charge stemming from the March 21, 2006 robbery is dismissed.
    Facts and Procedural History
    Over the course of a year and a half, four separate bank robberies occurred in Boone County
    Indiana at the Key Bank of Zionsville and the Dover Branch of the State Bank of Lizton. The first
    robbery occurred on March 21, 2006 at the Key Bank of Zionsville. The next two robberies
    occurred on April 16, 2007 and July 19, 2007 at the State Bank of Lizton. The final robbery
    occurred on September 19, 2007 at the Key Bank of Zionsville. Each of the robberies appeared to
    be connected. In each, the perpetrator was dressed exactly the same, was armed with a similarly
    described weapon, and demanded the money be handed over in the same fashion. Through police
    investigation, a vehicle associated with one of the robberies was seen on property owned by John
    Study. A search warrant was executed, and the police continued to find evidence linking the
    robberies.
    On October 29, 2007, Study was first charged with two counts of Class B felony robbery
    involving the State Bank of Lizton. On November 21, 2007, Study was arrested after a high-speed
    1
    See Crider v. State, 
    531 N.E.2d 1151
    , 1154 (Ind. 1988).
    2
    chase in Madison County, Florida. Thus, shortly after a bench warrant was issued for Study’s
    arrest in Indiana, he was being held at a penal facility in Florida. The trial court explained that
    either party would have to proceed under the Interstate Agreement on Detainers Act to have Study
    brought back to Indiana to face the robbery charges. Throughout this time, Study filed various pro
    se motions on his own behalf. The Court continued to delay any action on the case until Study
    was returned to Indiana. Study’s initial hearing was finally held on August 3, 2012. Prior to this,
    the State had added other charges, including allegations that Study was a Habitual Offender and
    criminal Counts III-X. 2 It was not until August 20, 2012 that Study was charged with Counts XI-
    XIII, which related to the robberies of the Key Bank of Zionsville. 3 Count XI, Class B felony
    robbery, specifically involved the Key Bank robbery that occurred on March 21, 2006.
    On September 17, 2012, counsel for Study filed a Motion to Dismiss Count XI on the
    grounds that it was barred by the statute of limitations provided in Indiana Code § 35-41-4-2
    (2014). A hearing was held, and Study argued that the State’s charging information did not
    demonstrate on its face why the charge was not barred by the five-year statute of limitations. 4 The
    trial court granted Study’s motion to dismiss Count XI as it was originally charged, but later
    granted the State leave to file an amended charging information. The amended charge for Count
    XI indicated that Study had concealed evidence of the charged offense, which constitutes an
    exception to Indiana’s statute of limitations under Indiana Code § 35-41-4-2(h)(2). Under the
    concealment-tolling provision, the State argued the statute of limitations was tolled until
    November 21, 2007 when Study was apprended, which would allow the State until November 21,
    2012 to bring the charge against him.
    2
    Counts III-VIII were each for Class B felony criminal confinement, Count IX charged Class D felony
    pointing a firearm, and Count X charged Class D felony resisting law enforcement.
    3
    These charges consisted of two counts of Class B felony robbery and one count of Class D felony auto
    theft.
    4
    If the State is relying upon the concealment-tolling provision, “courts have required the State to plead
    those circumstances [of concealment] in the information so that a defendant is apprised of the facts upon
    which the State intends to rely and may be prepared to meet that proof at trial.” Willner v. State, 
    602 N.E.2d 507
    , 508-09 (Ind. 1992) (citing Jones v. State, 
    14 Ind. 120
    , 121 (1860)).
    3
    The trial began on April 29, 2013 and spanned three days. The jury returned guilty verdicts
    on all counts, except Count IX, pointing a firearm. The jury later heard evidence on the Habitual
    Offender charge and found in favor of the State. Study received a total executed sentence of sixty-
    eight-and-one-half (68.5) years and a fine of $50,000.00. The sentence assigned to Count XI was
    fifteen (15) years to be served consecutively to the other sentences and a $10,000 fine.
    Study appealed on three grounds: 1) the trial court erred in failing to sever his counts for
    trial; 2) the trial court erred in allowing the State to amend the charging information on Count XI
    that was filed outside the statute of limitations, and the amended information did not cure the defect
    to the statute of limitations issue; and 3) the trial court erred in denying Study’s motion in limine
    relating to the admission of uncharged prior acts. The Court of Appeals held that Study was not
    entitled to severance as a matter of right, and thus there was no abuse of discretion in denying
    Study’s motion to sever. Study v. State, No. 06A04-1308-CR-391, Slip Op. at *8-9 (Ind. Ct. App.
    April 10, 2014). The Court of Appeals also held that based upon the concealment-tolling provision
    within the statute of limtiations and the State’s allegations in the amended charging information,
    the trial court did not err in denying Study’s motion to dismiss Count XI relating to the March 21,
    2006 robbery. Id. at *10. Finally, the Court of Appeals held that the trial court did not err in
    denying Study’s motion in limine in regards to certain prior bad acts. Id. at *12-13. The judgment
    of the trial court was affirmed. Id. at *15. However, Judge Mathias dissented on the issue of
    tolling the statute of limitations. Id. Judge Mathias argued that tolling only occurs by concealment
    “when there is a positive act performed by the defendant calculated to prevent discovery of the
    fact that a crime has been committed.” Id. The dissent expressly disagreed with the proposition
    that any act by the defendant to avoid apprehension would toll the statute of limitations. Id. at *16.
    This Court granted Study’s petition to transfer, thereby vacating the Court of Appeals
    opinion. See Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals on all issues,
    except for the issue regarding the interpretation and application of Indiana Code § 35-41-4-2(h)(2),
    the statute of limitations concealment-tolling provision. See Ind. Appellate Rule 58(A)(2).
    4
    Standard of Review
    It is well established that a trial court’s denial of a motion to dismiss is reviewed only for
    an abuse of discretion.      Gilliland v. State, 
    979 N.E.2d 1049
    , 1058 (Ind. Ct. App. 2012)
    (quoting Estrada v. State, 
    969 N.E.2d 1032
    , 1038 (Ind. Ct. App. 2012)). However, “[w]e review
    a matter of statutory interpretation de novo because it presents a question of law.” Sloan v. State,
    
    947 N.E.2d 917
    , 920 (Ind. 2011) (citing Gardiner v. State, 
    928 N.E.2d 194
    , 196 (Ind. 2010)).
    I.     Tolling the Statute of Limitations under Indiana Code § 35-41-4-2
    Indiana statutory law provides that prosecution for a Class B felony “is barred unless it is
    commenced: (1) within five (5) years after the commission of the offense.” 
    Ind. Code § 35-41-4
    -
    2(a)(1) (2014). However, limited exceptions are recognized. At issue here is the concealment-
    tolling provision, which provides in pertinent part:
    (h) The period within which a prosecution must be commenced does
    not include any period in which: . . . (2) 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…
    
    Ind. Code § 35-41-4-2
    (h)(2) (2014) (emphasis added).            Though other issues regarding the
    concealment-tolling provision have been addressed, the specific question of what conduct qualifies
    as concealing evidence of the offense has not been answered by this Court. However, a long line
    of Indiana precedent guides our analysis.
    In Sloan, this Court addressed when tolling of the statute of limitations ends, after
    concealment of the offense has been established. 947 N.E.2d at 920. We held that “[o]nce
    concealment is found, the relevant inquiry is when the prosecuting authority becomes aware or
    should have become aware of sufficient evidence to charge the defendant. At that point, tolling
    ends, and the statute of limitations begins to run.” Id. at 922. Sloan also acknowledged in a
    footnote that Indiana Code § 35-41-4-2(h)(2) “uses the language ‘conceals evidence of the
    offense,’ which is seemingly broader than its predecessor’s language, ‘conceals the fact that the
    5
    offense has been committed.’” Id. at 922 n.8 (citing 
    Ind. Code § 35-1-3-5
     (1976)). This Court
    stated that “[i]t is arguable that the new language applies to concealment of any evidence, including
    evidence of guilt, and thus would toll the statute of limitations in any crime in which a defendant
    tries to avoid apprehension.” Sloan, 947 N.E.2d at 922 n.8. The question presented in this case is
    whether Study’s conduct constitutes concealment for the purposes of tolling the statute of
    limitations? Despite a meritorious argument by the State, our answer is no.
    The Court of Appeals looked to Sloan and determined that the proper reading of the statute
    does allow for the five-year limitations period to be “tolled by a defendant’s concealment of any
    evidence, including evidence of guilt.” Study, No. 06A04-1308-CR-391, Slip Op. at *9. The
    State’s amended charging information provided that Study concealed evidence of: 1) his identity
    by wearing a mask during the offense; 2) the vehicle that he used to drive away after the robbery;
    3) the trash can used during the robbery that he took from the bank; 4) clothing he wore during the
    robbery; 5) personal property taken from a victim; 6) the weapon used during the commission of
    the offense; and 7) evidence relating to other robberies which displayed a common modus operandi
    as the March 21, 2006 robbery. Based upon its interpretation of the concealment-tolling provision,
    the Court of Appeals held that the trial court did not abuse its discretion when it denied Study’s
    motion to dismiss the March 21, 2006 robbery charge. Study, No. 06A04-1308-CR-391, Slip Op.
    at *10.
    However, Judge Mathias’ dissent explains that Indiana courts have long held that the
    phrase “conceals evidence of the offense” requires that the statute of limitations should not be
    tolled unless the defendant takes a positive act which is calculated to conceal evidence that a crime
    has been committed. Study, No. 06A04-1308-CR-391, Slip Op. at *15 (citing Kifer v. State, 
    740 N.E.2d 586
    , 588 (Ind. Ct. App. 2000) (explaining that concealment sufficient to toll the statute of
    limitations under Indiana Code § 35-41-4-2(a)(1) requires “a positive act performed by the
    defendant calculated to prevent discovery of the fact that a crime has been committed” and
    “concealment of guilt is not concealment of the fact that an offense has been committed”)) (string
    citation omitted). Despite the question we raised in Sloan, we are not persuaded to depart from
    the long-recognized reading of the concealment-tolling provision.
    6
    A. Plain meaning of the concealment-tolling provision
    The first step in statutory interpretation is to determine “whether the legislature has spoken
    clearly and unambiguously on the point in question.” Sloan, 947 N.E.2d at 922 (quoting Rheem
    Mf’g Co. v. Phelps Heating & Air Conditioning, Inc., 
    746 N.E.2d 941
    , 947 (Ind. 2001)) (internal
    quotation omitted). It is well-established that “[i]f a statute is clear and unambiguous, courts do
    not apply any rules of construction other than giving effect to the plain and ordinary meaning of
    the language.” 
    Id.
     Thus, we first look to the plain meaning of the statute.
    The language at issue provides that tolling can occur when the defendant “conceals
    evidence of the offense.” 
    Ind. Code § 35-41-4-2
    (h)(2) (emphasis added). When a long line of
    cases have given a statute the same construction, “such construction should not then be disregarded
    or lightly treated.” Heffner et. al. v. White, 
    221 Ind. 315
    , 319, 
    47 N.E.2d 964
    , 965 (1943). As
    such, the concealment-tolling provision can and should be read in accordance with long-standing
    precedent. The word “of” within that phrase can be read to require that the concealed evidence
    prevents awareness that a criminal offense has even occurred. In other words, evidence does not
    mean any evidence about the offense or who committed the offense, but specifically is requiring
    that the concealed evidence be related to the existence of the offense.
    Precedent from the lower courts demonstrates how this distinction is applied. In State v.
    Chrzan, the statute of limitations was tolled because the defendant engaged in conduct that
    concealed the fact that the crime had been committed. 
    693 N.E.2d 566
    , 567 (Ind. Ct. App. 1998).
    The defendant was charged with misappropriation of funds and the knowing use of a false
    measure. Id. at 566. The defendant resigned as a manager of a grain elevator and five days later
    gave the new manager a $16,000.00 check, claiming that it was payment for a previous order. Id.
    at 567. After an audit, it was discovered that the defendant had “secreted $12,000 to $15,000 for
    use in the event he was fired as manager.” Id. Charges were brought against the defendant three
    days after the two-year statute of limitations, that was calculated to have begun on the day the
    defendant resigned. Id. The Court reiterated that the concealment-tolling provision “must be held
    to mean concealment of the fact that a crime has been committed” and requires “some positive act
    done by the accused . . . calculated to prevent discovery of the fact of the offense of which he
    stands charged.” Id. (quoting Robinson v. State, 
    57 Ind. 113
    , 114 (1877)) (internal quotations
    7
    omitted). The Court held that “the defendant’s manipulation of financial records during the two
    years prior to his resignation as manager, and the writing of the two checks on January 18, 1994,
    were positive acts of concealment as contemplated by the statute.” Chrzan, 693 N.E.2d at 567.
    The actions of the defendant had concealed that the crime had occurred. Therefore, the statute of
    limitations was properly tolled. Id. The Court engaged in no additional statutory interpretation in
    order to reach this conclusion.
    In the alternative, the concealment-tolling provision has not been applied where there is
    insufficient evidence that the defendant took positive acts to conceal that the crime occurred.
    In State v. Holmes, a police officer was charged with theft from multiple local businesses while
    on duty. 
    393 N.E.2d 242
    , 244 (Ind. Ct. App. 1979). Each theft was witnessed by a fellow police
    officer. 
    Id.
     The charges were brought after the five-year statute of limitations expired. 
    Id.
     The
    court held that “[k]nowledge of these facts [of the offenses] by the officers, who had a duty to
    report and investigate crime, amounted to a discovery of the fact a crime had been committed.
    This discovery triggered the running of the statutory period.” 
    Id. at 245
    . Because the State did
    not prove that the defendant had engaged in any positive acts to prevent law enforcement from
    discovering that the thefts had occurred, the concealment-tolling provision did not apply.
    These cases demonstrate that Indiana appellate courts have consistently applied the same
    interpretation of the concealment-tolling provision, even after the statutory language was changed
    in 1976. When comparing the current statutory language of the concealment-tolling provision to
    the previous language, Sloan even pointed out that “decisions from the Court of Appeals have not
    assigned significance to this change and continue to analyze concealment as courts did under the
    now-defunct section 35-1-3-5.” Sloan, 947 N.E.2d at 922 n.8. As such, it is appropriate to give
    weight to this consistent interpretation and application of the concealment-tolling provision. While
    it is permissible to revisit judicial authority interpreting a statute,
    [I]f a line of decisions of this Court has given a statute the same
    construction and the legislature has not sought to change the relevant
    parts of the legislation, the usual reasons supporting adherence to
    precedent are reinforced by the strong probability that the courts
    have correctly interpreted the will of the legislature.
    Durham ex. rel. Estate of Wade v. U-Haul Int’l., 
    745 N.E.2d 755
    , 759 (Ind. 2001) (citing Heffner,
    
    221 Ind. at 318-19
    , 
    47 N.E.2d at 965
    ). We are convinced that the long line of cases applying the
    8
    concealment-tolling provision to only positive acts that conceal that an offense has been committed
    are correct. However, to the extent that this Court suggested the potential for a different reading
    of that provision in Sloan, we will continue our analysis.
    B. Interpretation of statutes of limitations
    “For misdemeanors and most classes of felonies, Indiana has enacted statutes of
    limitations, which permit the commencement of criminal proceedings against defendants only
    within a fixed period of time from the commission of a crime.” Sloan, 947 N.E.2d at 920. The
    “primary purpose is to protect defendants from the prejudice that a delay in prosecution could
    bring, such as fading memories and stale evidence.” Id. (citing Kifer, 
    740 N.E.2d at 587
    ). Statutes
    of limitations are also intended to “strike[] a balance between an individual’s interest in repose and
    the State’s interest in having sufficient time to investigate and build its case.” Sloan, 947 N.E.2d
    at 920 (citing Heitman v. State, 
    627 N.E.2d 1307
    , 1309 (Ind. Ct. App. 1994)). “Formerly, statutes
    of limitations were looked upon with disfavor . . . [n]ow, however, the judicial attitude is in favor
    of statutes of limitations . . . since they are considered as statutes of repose and as affording security
    against stale claims.” Shideler v. Dwyer, 
    417 N.E.2d 281
    , 283 (Ind. 1981) (internal quotation
    omitted). Accordingly, “[a]ny exception to the limitation period must be construed narrowly and
    in a light most favorable to the accused.” State v. Lindsay, 
    862 N.E.2d 314
    , 317 (Ind. Ct. App.
    2007) (citing State v. Jones, 
    783 N.E.2d 784
    , 787 (Ind. Ct. App. 2003)).
    Precedent demonstrates how conscious our courts have been to give a narrow construction
    to provisions which toll the statute of limitations. See Lindsay, 
    862 N.E.2d at 320-21
    . In Lindsay,
    a former police officer was indicted by a grand jury charging him with corrupt business influence
    and false informing. 
    Id. at 317
    . Evidence supporting these charges came to light during a cold
    case investigation of two 1988 murders, which the defendant had worked on as a police officer. 
    Id. at 316
    . The cold case investigation uncovered that the defendant had concealed evidence of crimes
    by repeatedly threatening and intimidating witnesses during the 1988 murder investigation. 
    Id.
    The Court of Appeals recognized that “a police officer’s threats and acts of intimidation may be
    more pervasive than threats or acts of intimidation occasioned by someone who is not a police
    officer.” 
    Id. at 321
    . However, the Court of Appeals refused to find that the concealment-tolling
    9
    provision continued to toll the statute of limitations for years after the intimidation tactics ceased
    in 1996, even though the defendant’s suspected guilt remained concealed until the investigation
    team became suspicious of him in 2003-2004. 
    Id. at 316, 321
    . Significantly, the holding turned
    upon when the defendant ceased taking positive acts to conceal those offenses, not when
    authorities became aware of the offenses, regardless of the great public interest that there is in
    deterring and punishing corrupt police action.
    This strict application was demonstrated again in Umfleet v. State, where the defendant
    was charged with child molesting. 
    556 N.E.2d 339
    , 340-41 (Ind. Ct. App. 1990). The charges
    were filed outside of the five-year statute of limitations. 
    Id.
     The Court of Appeals explained that
    “[a]bsent any threatening conduct by the defendant, the victim’s ignorance as to the criminal nature
    of an alleged wrongdoing will not stop the statutory period of limitation from running,” and even
    “outside influences” that induce the victim’s silence do not constitute positive acts by the
    defendant. 
    Id. at 342
    . Furthermore, the Court of Appeals also explained that the defendant’s own
    denial that any abuse took place also was not a positive act to conceal the fact that an offense was
    committed. 
    Id.
     Once again, the court demonstrated the fine line that must be drawn when
    determining whether the concealment-tolling provision should apply. 5
    As in Umfleet, a positive act of concealment never occurred at all in the case before us
    today. Here, the State argues that concealment of any evidence of guilt tolls the statute of
    limitations. The charging information alleges that concealment occurred when Study concealed
    his identity by wearing a mask, and concealed the getaway car, clothes worn during the crime,
    items taken from a victim, the weapon used, and evidence linking the robbery to other robberies.
    None of these actions would serve to prevent law enforcement from discovering that a bank had
    been robbed. The State’s ability to investigate the crime and develop a case was not thwarted.
    Interpretation of the statute of limitations requires balancing the defendant’s interest in being
    5
    Furthermore, it is important to emphasize that both of these decisions were handed down after the language
    in the concealment-tolling provision had changed from “conceals the fact that the offense has been
    committed,” 
    Ind. Code § 35-1-3-5
     (1976), to “conceals evidence of the offense.” 
    Ind. Code § 35-41-4
    -
    2(h)(2) (2014).
    10
    timely prosecuted and the State’s interest in having sufficient time to investigate and build a
    case. See Sloan, 947 N.E.2d at 920. Here, the robbery occurred on March 21, 2006. Law
    enforcement officials discovered the robbery and were able to begin investigating immediately.
    Therefore, the State’s interest was sufficiently served as there was nothing delaying their ability to
    investigate.
    Furthermore, “[i]t is helpful to consider the decisions of other jurisdictions” that have
    interpreted and applied similar concealment-tolling provisions. See Bob Anderson Pontiac, Inc.
    v. Davidson, 
    293 N.E.2d 232
    , 235 (Ind. Ct. App. 1973). Other jurisdictions have similarly applied
    concealment-tolling provisions to require the defendant to engage in positive acts to conceal the
    offense. In State v. Palmer, the Supreme Court of Kansas highlighted the long history of its
    concealment-tolling provision, which requires concealment of the existence of the offense. 
    810 P.2d 734
    , 737-38 (Kan. 1991). One of the first known Kansas cases involved the larceny of a
    surveyor’s transit. Id. at 737. The Court determined that “the defendant’s secretion of the item
    did not conceal the fact that it had been stolen” and “for concealment to toll the statute of
    limitations, some positive affirmative acts designed to prevent the discovery of the commission of
    the offense was needed and not mere silence or inaction.” Id. at 737-38 (citing State v. Heinz, 
    121 Kan. 547
    , 548, 
    247 P. 631
    , 631 (1926)) (emphasis added). The defendant “must have concealed
    the fact of the crime and not merely his connection with the crime.” Palmer, 810 P.2d at 738.
    After looking to the application of the concealment-tolling provision throughout a long line of
    cases, the Court in Palmer again addressed whether a theft charge could be tolled based upon
    concealment. Id. at 741. The Court followed longstanding precedent by holding that to constitute
    concealment “there must be a positive act done by or on behalf of the accused calculated to prevent
    discovery of the thefts by those owning or having possession of the property before the theft” and
    “[m]ere silence, inaction, nondisclosure, or disposal of the stolen property is not concealment of
    the fact of the crime.” Id. (emphasis added).
    In      yet another theft case, the Kansas Supreme Court reached the same
    conclusion. See State v. Gainer, 
    608 P.2d 968
    , 971-72 (Kan. 1980). In Gainer, the police
    recovered two guns that belonged to a man who believed that his guns were stored in his attic. Id.
    at 969. The defendant who had been in possession of the guns testified that he was the gun owner’s
    neighbor and had taken the guns from the attic approximately two years prior to the police
    11
    discovery of the weapons. Id. The defendant hid the guns for six months and then used them as
    his own. Id. The Court explained that “[h]iding or disposing of the property stolen does not
    constitute concealment . . . [and] [t]o hold otherwise would extend the statute of limitations beyond
    its stated term in practically every case of theft . . . .” Id. at 971. Because there was no act
    calculated to prevent discovery of the actual theft, the tolling provision was not applicable. Id. at
    971-72.
    The Tennessee Supreme Court also strictly requires a positive act on the part of the
    defendant for the concealment-tolling provision to apply. See State v. Henry, 
    834 S.W.2d 273
    ,
    275-76 (Tenn. 1992). In Henry, the defendant was charged with incest, and had told the victim
    that the abuse was their secret and not to tell anyone, but the victim testified that she was never
    threatened by the defendant. 
    Id. at 274-75
    . The Court determined that parental control over the
    victim alone was insufficient to constitute concealment, and held that the statute of limitations had
    not been tolled. 
    Id. at 275-76
    . The Court emphasized that “[t]he purpose of a statute of limitations
    is to limit exposure to criminal prosecution to a certain fixed period of time following the
    occurrence of those acts the legislature has decided to punish by criminal sanctions,” and also
    noted that the limitation period “may also have the salutary effect of encouraging law enforcement
    officials promptly to investigate suspected criminal activity.” 
    Id. at 276
     (quoting Toussie v. U.S.,
    
    397 U.S. 112
    , 114-15 (1970)). Thus, the statute was construed in favor of the defendant, and the
    Tennessee Supreme Court recognized that the defendant must take more directed action before
    tolling is appropriate. But cf. State v. White, 
    939 S.W.2d 113
    , 117 (Tenn. Ct. App. 1996)
    (determining that where the defendant was charged with misappropriation of funds and it was
    “clear from the record that the defendant went to great lengths to conceal her misappropriations,
    from altering records to forging documents to destroying records . . . the State sufficiently proved
    the defendant had concealed the evidence of her misappropriations, thereby tolling the applicable
    statutes of limitation”).
    Even in the civil context a defendant must take some positive action for tolling to occur.
    Our courts have recognized that “[t]he law narrowly defines concealment, and generally the
    12
    concealment must be active and intentional.” 6 Olcott Int’l & Co., Inc. v. Micro Data Base Sys.,
    Inc., 
    793 N.E.2d 1063
    , 1072 (Ind. Ct. App. 2003) (citing Ludwig v. Ford Motor Co., 
    510 N.E.2d 691
    , 697 (Ind. Ct. App. 1987), trans. denied. As such, the “‘affirmative acts of concealment must
    be calculated to mislead and hinder a plaintiff from obtaining information by the use of ordinary
    diligence, or to prevent inquiry or elude investigation.’” 
    Id.
     In a system that affords significant
    protections to criminal defendants, and where this Court is compelled to construe any exception to
    the statute of limitations in the light most favorable to the accused, it would be inconsistent to hold
    that the actions necessary to toll a criminal statute of limitations can be met more easily than those
    actions that are necessary to toll a civil statute of limitations.
    Furthermore, this Court will “not presume that the Legislature intended language used in a
    statute to be applied illogically or to bring about an unjust or absurd result.” City of Carmel v.
    Steele, 
    865 N.E.2d 612
    , 618 (Ind. 2007). If concealment of guilt is all that is required to toll the
    statute of limitations, it is hard to imagine when the concealment-tolling provision would not
    apply. In almost every criminal case, the offender is going to attempt to conceal that they have
    committed the offense. Under that reading, in order to avoid tolling the statute of limitations, a
    criminal defendant would have to leave incriminating evidence at the crime scene or deliver it to
    police. Should the statute be read to require that Study turn over the getaway car or return items
    stolen from a victim in order to avoid tolling? As Judge Mathias stated, allowing any concealment
    of guilt to toll the statute of limitations would “vitiate[] this public policy in all but very few crimes,
    leaving us with an effectively meaningless statute of limitations.” Study, No. 06A04-1308-CR-
    391, Slip Op. at *16. We agree that the exception cannot be read to swallow the rule.
    This is not to suggest that the concealment-tolling provision would never be applicable in
    the instance of a robbery. For example, an individual may rob a jewelry store and threaten the
    employee into forging sales receipts and altering accounting documents to make it appear as if no
    robbery had occurred. After the robbery, the offender may continue sending threatening mail or
    6
    In the civil context there is an exception for cases involving fiduciary relationships, which typically entail
    a duty to disclose. Olcott, 
    793 N.E.2d at 1072
    .
    13
    messages to the employee to not report the robbery. In this instance, the criminal would have
    taken positive actions to conceal that a robbery had occurred, which would inevitably result in
    some delay before law enforcement could commence an investigation. Allowing the statute of
    limitations to run in this scenario would function as a windfall to the defendant and unduly burden
    the State’s ability to build a case and bring charges. As such, the application of a tolling provision
    is warranted.
    However, here, there is no dispute that the police were aware that the bank robbery on
    March 21, 2006 had occurred. The police immediately began investigating and even discovered
    the connections between the March 21, 2006 robbery and subsequent robberies for which Study
    was eventually charged. Thus, even Study’s attempts to conceal his guilt were not thwarting the
    progress of the police investigation.
    Finally, it is necessary to reiterate that this interpretation is not new. As early as 1882 this
    Court recognized that
    The question as to the construction to be given the statute of
    limitations in criminal cases has been frequently before this court,
    and it has been uniformly held that something more than the
    accused’s connection with the crime must be shown to have been
    concealed, and that the concealment, to avoid the running of the
    statute, must be of the crime itself.
    State v. Hoke, 
    84 Ind. 137
    , 138 (1882) (citations omitted). Since that pronouncement, Indiana
    courts have continued to hold that concealment tolls the statute of limitations only when there is a
    positive act performed by the defendant that is calculated to prevent the discovery that a crime has
    been committed. Gilliland, 979 N.E.2d at 1059-60; Reeves v. State, 
    938 N.E.2d 10
    , 17 (Ind. Ct.
    App. 2010); Sipe v. State, 
    797 N.E.2d 336
    , 340 (Ind. Ct. App. 2003); Kifer, 
    740 N.E.2d at 588
    ; Umfleet, 
    556 N.E.2d at 343
    ; See also Crider, 531 N.E.2d at 1154.
    The legislature has done nothing to respond to this interpretation, even though Indiana
    courts continue to firmly state this standard for the application of the concealment-tolling
    14
    provision, even after the slight change in the statutory language. 7             We are compelled to
    acknowledge that “had the General Assembly disapproved of our approach . . . it could have done
    so” at any point over the past thirty-eight years since the statutory language was changed. Bailey
    v. State, 
    979 N.E.2d 133
    , 141 (Ind. 2012). “In the absence of such a change, we think it fair to
    infer a persuasive degree of legislative acquiescence with respect to our approach . . . though
    certainly the legislature may still opt to draw this very distinction in the future.” 
    Id.
     (internal
    citation omitted). Until the legislature states otherwise, we will continue to hold that tolling the
    statute of limitations for “concealing evidence of the offense” requires a positive act by the
    offender that is calculated to conceal that a crime has been committed. As this Court stated
    previously in Sloan, “[u]ntil the legislature chooses to speak on the issue, prosecutors will have to
    do what they have always done: evaluate the various factors that affect the strength of a case and
    then decide whether to proceed against a defendant.” 947 N.E.2d at 923-24.
    Conclusion
    The application of the concealment-tolling provision under Indiana Code § 35-41-4-2(h)(2)
    requires a positive act by the defendant that is calculated to conceal the fact that a crime has been
    committed. Study did not engage in any positive act calculated to conceal the fact that a robbery
    occurred on March 21, 2006. Therefore, the statute of limitations as to that offense was not tolled,
    and the charge should have been dismissed. We remand for the trial court to vacate the conviction
    and sentence for Count XI and dismiss the charge. Count XI resulted in a fifteen-year (15) sentence
    to be served consecutively to his other sentences and $10,000.00 fine. We affirm the convictions,
    sentences, and fines for Counts I-VIII, X, XII, and XIII. Because of the manner in which the trial
    court imposed concurring and consecutive sentences, the reversal of Count XI operates to decrease
    7
    Furthermore, as Study’s counsel explained during oral arguments, when the statutory language changed
    in 1976, the statute was repealed, which indicates that the legislature did not merely decide to modify the
    language. Oral Argument at 8:43, Study, No. 06A04-1407-CR-461 (October 16, 2014). While it is unclear
    why the language was changed, that change was seemingly insignificant.
    15
    Study’s total sentence by fifteen (15) years and $10,000. We affirm the remaining aggregate
    sentence of fifty-three-and-one-half (53.5) years and $40,000 fine.
    Rush, C.J., Dickson, Rucker, Massa, J.J., concur.
    16