ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID M. SHAW KAREN M. FREEMAN-WILSON
Evansville, Indiana Attorney General of Indiana
GRANT H. CARLTON
Deputy Attorney General
COURT OF APPEALS OF INDIANA
DAVID A. KIFER, )
vs. ) No. 82A01-0003-CR-90
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Wayne Trockman, Judge
Cause No. 82D02-9909-DF-730
December 20, 2000
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
David Kifer appeals his conviction following a bench trial for Failure to Stop
at the Scene of an Accident Resulting in Death, a Class D felony.
He presents a single issue for our review, namely, whether his conviction
is barred by the five-year statute of limitations set forth in Indiana Code
On the morning of October 2, 1987, David Kifer was driving a green
Chevrolet on Christ Road in Evansville when he struck and killed jogger Barbara
Mazick. Kifer left the scene of the accident and did not report
the incident to police. A motorist ultimately discovered Mazicks body, and Evansville
police immediately began investigating her death.
Following the accident, Kifer drove to his brothers home in Carmi, Illinois.
He told his brother that he had run over a woman in Evansville
earlier that morning. Kifer and his brother then removed the license plates
and headlight rings from the car and sold the vehicle to a salvage
Having failed to uncover any credible information concerning Mazicks death, the police suspended
their investigation approximately two years after the accident. The police reopened the
investigation in 1994 when Robin Johnson claimed to have information linking Kifer to
the accident. This led police to conduct further interviews; however, none of
these interviews corroborated Johnsons claims.
On September 6, 1997, Evansville police received a tip from the Olney, Illinois
Police Department that Kifer had been the driver in a fatal hit and
run accident in 1987 and that Kifers brother had assisted him in disposing
of the car. After subsequent investigation by police, the State charged Kifer
on September 8, 1999, with failure to stop at the scene of an
accident resulting in death, a Class D felony.
Kifer moved to dismiss the charge and argued that the States prosecution was
barred by the five-year statute of limitations for a Class D felony.
The trial court denied his motion, determining that Kifers concealment of evidence relating
to the crime had tolled the statute of limitations. Following a bench
trial, the court found Kifer guilty as charged. This appeal ensued.
DISCUSSION AND DECISION
Indiana Code Section 35-41-4-2(a)(1) bars prosecution for a Class D felony unless it
is commenced within five years after the commission of the offense. Indiana
Code Section 35-41-4-2(g) creates an exception to the five-year limitations period and provides
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 him 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(g)(2). The exceptions delineated in this statute must be
construed narrowly and in a light most favorable to the accused. Umfleet
v. State, 556 N.E.2d 339, 341 (Ind. Ct. App. 1990), trans. denied.
To fall within the concealment exception, the concealment of a crime must result
from a defendants positive acts. Id.
Kifer argues that the five-year statute of limitations set forth in Indiana Code
Section 35-41-4-2(a)(1) had expired by the time the State filed its charge against
him on September 8, 1999. Specifically, Kifer contends that the limitations period
began to run on the date of the accident, October 2, 1987.
Therefore, Kifer maintains that the States prosecution, initiated almost twelve years after the
commission of the offense, is barred and that his conviction should be reversed.
The State responds that the five-year limitations period was tolled under Indiana
Code Section 35-41-4-2(g)(2) because Kifer concealed evidence relating to the crime. We
cannot agree with the States position.
The primary purpose of a statute of limitations is to insure against the
inevitable prejudice and injustice to a defendant that a delay in prosecution creates.
Heitman v. State, 627 N.E.2d 1307, 1309 (Ind. Ct. App. 1994).
The limitations period strikes a balance between an individuals interest in repose and
the States interest in having sufficient time to investigate and build its case.
Id. The tolling provision at issue here, Indiana Code Section 35-41-4-2(g)(2),
serves the States interest of ensuring that it can later prosecute a criminal
suspect even if, for a time, he conceals evidence of the offense such
that authorities are unaware and unable to determine that a crime has been
committed. See id. (interpreting Indiana Code Section 35-41-4-2(g)(1)).
Clearly, the State failed to prosecute Kifer within the five-year statute of limitations
and, indeed, did not file its charge until nearly twelve years after the
fatal accident. Nevertheless, the State urges that Kifers positive acts of, among
other things, altering and selling his car, tolled the statute of limitation[s] because
they concealed the fact of Kifers crime[.] Brief of Appellee at 5.
Contrary to the States contention, however, Kifers alteration and disposal of his
car did not amount to concealment of the fact that a crime had
been committed but was only concealment of his guilt. It is well
settled that concealment of guilt is not concealment of the fact that an
offense has been committed. See Robinson v. State, 57 Ind. 113, 114
(1877) (interpreting predecessor statute); State v. Holmes, 181 Ind. App. 634, 637, 393
N.E.2d 242, 244 (1979) (interpreting predecessor statute); see also Umfleet, 556 N.E.2d at
342 (holding that defendants denial of involvement in alleged child abuse not positive
act to conceal fact that offense had been committed). To constitute concealment
of evidence of the offense sufficient to toll the statute of limitations under
Indiana Code Section 35-41-4-2(a)(1), there must be a positive act performed by the
defendant calculated to prevent discovery of the fact that a crime has been
committed. See Umfleet, 556 N.E.2d at 341; see also State v. Palmer,
810 P.2d 734, 738 (Kan. 1991) (observing that to constitute concealment of fact
of the crime of theft sufficient to toll statute of limitations, there must
be positive act calculated to prevent discovery of theft by those owning or
having possession of property prior to theft).
Here, Kifer concealed evidence of his guilt by altering and disposing of the
car involved in the accident that killed Mazick, but he did not conceal
the fact that a crime had been committed. It is undisputed that
on October 2, 1987, the Evansville police were aware that a fatal hit
and run accident had occurred. The police began investigating Mazicks death immediately
and concluded in their Initial Case Report that she was struck by [a]
vehicle that left the scene of the accident. Record at 367.
Therefore, the commission of the offense of failure to stop at an accident
resulting in death was fully known in 1987, and the States prosecution of
Kifer some twelve years later is barred by Indiana Code Section 35-41-4-2(a).
See Holmes, 181 Ind. App. at 639, 393 N.E.2d at 245 (finding insufficient
evidence of active concealment of thefts by defendant where record showed that two
police officers had knowledge of facts which [led] them to believe that theft
offenses had been committed.); cf. Crider v. State, 531 N.E.2d 1151, 1154 (Ind.
1988) (holding that defendant concealed fact of his crime of child molesting where
daughters never disclosed molestation to authorities because of defendants threats of bodily harm
and death); cf. also State v. Chrzan, 693 N.E.2d 566, 567 (Ind. Ct.
App. 1998) (holding that managers manipulation of financial records such that no one
was aware he had been misappropriating funds until his resignation was positive act
of concealment as contemplated by statute).
Our holding also comports with the rule that we construe statutes to avoid
absurdity, hardship, injustice, and restrictions of human liberty. See Heitman, 627 N.E.2d
at 1310. Were we to agree with the States position that concealment
of any evidence, including evidence of guilt, tolls the statute of limitations, the
limitations period would be tolled in nearly all crimes in which a defendant
attempts to avoid apprehension. This would lead to an absurd result, as
the exception found in Indiana Code Section 35-41-4-2(g)(2) would essentially nullify the rule
that D felony prosecutions be commenced within five years after the commission of
the offense. See Umfleet, 556 N.E.2d at 341 (observing that exceptions to
statute of limitations must be narrowly construed in favor of accused). Such
an interpretation would also lead to injustice and hardship, as it would permit
the State to file charges long after the five-year limitations period had expired
and would force defendants to defend against extremely stale charges.
In sum, Kifers actions following the accident that killed Mazick did not constitute
concealment of evidence of the offense sufficient to toll the statute of limitations
under Indiana Code Section 35-41-4-2(a)(1). We are constrained to hold that the
States prosecution of Kifer nearly twelve years after the commission of the offense
is barred as untimely and that the trial court erred when it denied
Kifers motion to dismiss. His conviction for failure to stop at the
scene of an accident resulting in death must be reversed.
RILEY, J., and BROOK, J., concur.
The State filed an amended information on January 11, 2000.