Court of Appeals of Indiana | Memorandum Decision 46A03-1608-CR-1742 | January 18, 2017 Page 1 of 22

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this 

Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Deputy Attorney General

Indianapolis, Indiana

ATTORNEY FOR APPELLEES 

DAVID BIELA AND JAMES 

LIVERMAN

Stephen A. Kray

LaPorte, Indiana

ATTORNEYS FOR APPELLEES 

SANLEY MAZUR AND GREGORY 

CZIZEK 

William F. Sullivan, Jr.

Michigan City, Indiana

Stephen A. Kray

LaPorte, Indiana

IN THE

COURT OF APPEALS OF INDIANA

State of Indiana,

Appellant-Plaintiff,

v.

David Biela, Gregory Czizek, 

James Liverman, and Stanley 

Mazur,

January 18, 2017

Court of Appeals Case No.

46A03-1608-CR-1742

Appeal from the LaPorte Superior 

Court

The Honorable Michael S. 

Bergerson, Judge

Trial Court Cause Nos.
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Appellees-Defendants.

46D01-1602-F5-155

46D01-1602-F5-156 

46D01-1602-F5-160 

46D01-1602-F5-161 

Brown, Judge.

[1] The State of Indiana appeals the trial court’s order granting motions to dismiss 

filed by David Biela, Gregory Czizek, James Liverman, and Stanley Mazur 

(together, the “Appellees”). The State raises one issue which we revise and 

restate as whether the trial court abused its discretion in denying the State’s 

motions to amend its charging informations and in dismissing the charges 

against the Appellees. We reverse and remand.

Facts and Procedural History

[2] On February 19, 2016, the State filed charges against each of the Appellees 

under separate causes.

1

 The State charged Biela under cause number 46D01-

1602-F5-155 (“Cause No. 155”) with five counts of promoting professional 

gambling as level 6 felonies and one count of corrupt business influence as a 

level 5 felony.2

 The State charged Czizek under cause number 46D01-1602-F5-

 

1 According to the State, it also charged John Greene under another cause with five counts of promoting 

professional gambling as level 6 felonies and one count of corrupt business influence as a level 5 felony and 

he pled guilty to two counts of promoting professional gambling as level 6 felonies in exchange for dismissal 

of the other counts. 

2 Amended information was filed against Biela on March 15, 2016, to correct a typographical error. 
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156 (“Cause No. 156”) with three counts of promoting professional gambling as 

level 6 felonies and one count of corrupt business influence as a level 5 felony. 

The State charged Liverman under cause number 46D02-1602-F5-160 (“Cause 

No. 160”) with four counts of promoting professional gambling as level 6 

felonies and one count of corrupt business influence as a level 5 felony. The 

State charged Mazur under cause number 46D01-1602-F5-161 (“Cause No. 

161”) with five counts of promoting professional gambling as level 6 felonies 

and one count of corrupt business influence as a level 5 felony. The 

information filed in each of the Appellee’s cases alleged, with respect to the 

counts of promoting professional gambling as level 6 felonies, that the Appellee

“did knowingly or intentionally own, manufacture, possess, buy, sell, rent, 

lease, repair or transport a gambling device, to wit: . . . parlay cards . . . for 

illegal football betting and wagers” and referred to Ind. Code § 35-45-5-4(a)(1).3

 

 

3 The informations cited “I.C. 35-45-5-4 (1),” which appears to be a reference to Ind. Code § 35-45-5-4(a)(1). 

Ind. Code § 35-45-5-4(a)(1) provides that a person who “knowingly or intentionally owns, manufactures, 

possesses, buys, sells, rents, leases, repairs, or transports a gambling device, or offers or solicits an interest in a 

gambling device” commits promoting professional gambling, a level 6 felony. Ind. Code § 35-45-5-1(e)

provides: 

“Gambling device” means:

(1) a mechanism by the operation of which a right to money or other property 

may be credited, in return for consideration, as the result of the operation of an 

element of chance;

(2) a mechanism that, when operated for a consideration, does not return the 

same value or property for the same consideration upon each operation;

(3) a mechanism, furniture, fixture, construction, or installation designed 

primarily for use in connection with professional gambling;

(4) a policy ticket or wheel; or

(5) a subassembly or essential part designed or intended for use in connection 

with such a device, mechanism, furniture, fixture, construction, or installation. 
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Appellant’s Appendix, Volume 2, at 15-16, 49, 80, 110-111. The information 

for each of the Appellees alleged, with respect to the counts of corrupt business 

influence, that the Appellee “was associated with a group of individuals who 

promoted illegal gambling through distribution, collection and payments 

associated with parlay cards for illegal football betting and wagers.”4

 Id. at 16, 

49-50, 81, 111. 

[3] An affidavit for probable cause prepared by Indiana Gaming Commission 

Officer Jeffery Boyd was filed in each of the four causes. The affidavit stated 

that an investigation corroborated anonymous information regarding an illegal 

gambling operation and that “[t]he gambling devices utilized throughout were 

‘parlay cards,’ or sports betting cards, which list the week’s games and odds on 

those games.” Id. at 9. The affidavit stated that Liverman would visit Biela’s 

print shop, return to his vehicle carrying a bag containing items consistent with 

stacks or bulk packs of cards, and drive to other locations in an apparent 

delivery route, that his behavior was consistent through the football seasons of 

2013, 2014, and 2015, that on one occasion Liverman was observed delivering a 

bag to a manager at a certain establishment, that based on Boyd’s training and 

experience he believed this to be the previous week’s payouts and new parlay 

 

In the application of this definition, an immediate and unrecorded right to replay 

mechanically conferred on players of pinball machines and similar amusement devices is 

presumed to be without value.

4 The informations cited Ind. Code § 35-45-6-2(3), which provides that a person “who is employed by or 

associated with an enterprise, and who knowingly or intentionally conducts or otherwise participates in the 

activities of that enterprise through a pattern of racketeering activity; commits corrupt business influence, a 

Level 5 felony.” 
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cards, and that after Liverman left, another patron asked the manager for a card

and the manager reached into the bag Liverman had delivered and handed a 

card to the person. The affidavit provided that Greene was observed interacting 

with Liverman and Biela, picking up cards from Biela’s residence, and traveling 

a route to several bars and restaurants, that Gaming Commission officers were 

able to purchase football parlay cards at multiple establishments Greene was 

observed to visit, and that on one occasion Gaming Commission officers were 

able to obtain football parlay cards at a Michigan City establishment and place 

bets on them. The affidavit stated that, during the 2013, 2014, and 2015 

football seasons, Mazur was observed on multiple occasions picking up parlay 

cards from Biela’s home and business. 

[4] Further, the affidavit stated that search warrants were executed at Biela’s 

residence and his print shop, multiple items consistent with bookmaking were 

documented and seized, Biela made admissions he had been printing parlay 

cards for a long time and the current business was divided up between Greene, 

Liverman, Mazur, and Czizek, he printed 1,150 cards weekly for Greene, 1,200 

weekly for Liverman, 600 for Czizek, and 900 for Mazur, that these individuals 

control the parlay card distribution and no other person would be able to 

distribute cards in the area, and that, at the print shop, a shelf was observed 

containing football parlay cards under the names of Greene, Mazur, Czizek, 

and Liverman. In the paragraph describing the execution of the search 

warrants at Biela’s residence and print shop, the affidavit included a sentence 

stating that, “[d]uring the execution of that search warrant, the phones in the 
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residence rang constantly with individuals seeking to place bets.” Id. at 12. The 

affidavit stated that ledgers of betting records and parlay cards were discovered 

at Liverman’s home during the execution of a search warrant, that bank bags 

and parlay cards were discovered at Greene’s home during the execution of a 

search warrant, that throughout the search warrant execution the name Czizek 

came up from Biela and was found on the shelves of printed parlay cards, and 

that Biela indicated Czizek was involved in the distribution of parlay cards. 

[5] At the initial hearing on March 1, 2016, the court scheduled the omnibus date 

for April 21, 2016 in each cause. On March 24, 2016, Biela filed a 

Consolidated Motion to Dismiss Amended Charging Information and Quash 

Affidavit for Probable Cause, arguing in part that parlay cards do not fall within 

the statutory definition of an illegal gambling device and that his printing, 

possessing, and delivery of parlay cards to others does not render him 

criminally liable for how they were used by others.5

 

[6] On April 5, 2016, the State filed a request for leave to file an amended 

information against Biela under Cause No. 155. The State’s request stated that 

it “concedes there may be some merit to Defense Counsel’s argument regarding 

gambling devices and thus files this amended information under a more 

appropriate subsection of the chapter under which original charges were filed

 

5 Biela also argued that the affidavit should be dismissed because it was obtained by a law enforcement officer 

presenting false information and that the statement in the affidavit that, during the execution of a search 

warrant, the phones in the residence rang constantly was false. 
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and and [sic] alleges the same underlying events involved.” Id. at 24. The State 

argued that no trial date had been set and that Biela’s substantial rights were not 

jeopardized.6

 On the same day the State also filed requests for leave to file 

amended informations in the other causes. With respect to the charges for 

promoting professional gambling, the State requested that the informations be 

amended to allege that the Appellees “did . . . knowingly or intentionally . . . 

receive gambling information by any means, to wit: . . . football game and point 

spread information” and to cite to Ind. Code § 35-45-5-4(a)(2).7

 Id. at 27, 58, 

89-90, 119-120. The State also requested the charging informations for each of 

the Appellees be amended, with respect to the counts of corrupt business 

influence, to allege the Appellee “was associated with a group of individuals 

who promoted illegal gambling.” Id. On May 10, 2016, Czizek, Livermore, 

and Mazur each filed motions to dismiss the charges against them. Entries

dated April 22, 2016, in the chronological case summaries state that the court 

scheduled a hearing for May 19, 2016, and set an omnibus date for June 16, 

2016. 

 

6 The State also indicated that it was filing an amended probable cause affidavit to correct a scrivener’s error, 

namely, that a sentence stating that the phones in the residence rang constantly during the execution of a 

search warrant was erroneously included in the paragraph referring to Biela’s home but belonged instead in 

the paragraph referring to Liverman’s home. 

7 Ind. Code § 35-45-5-4(a)(2) provides that a person who, “before a race, game, contest, or event on which 

gambling may be conducted, knowingly or intentionally transmits or receives gambling information by any 

means, or knowingly or intentionally installs or maintains equipment for the transmission or receipt of 

gambling information,” commits promoting professional gambling, a level 6 felony. 
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[7] On May 19, 2016, the court held a joint hearing on the motions to dismiss and 

the motions to amend the charging informations. At the hearing, Biela’s 

defense counsel argued that the statute does not regulate or prohibit possession 

of parlay cards and that the probable cause affidavit does not state that Biela 

received any monetary gain from the gambling operation, received any 

percentage of the wins, or contributed to any percentage of the losses. The 

court noted that it did not see any evidence in the affidavit that would indicate 

that any wagers were even placed. Biela’s counsel noted that gambling means 

risking money for gain contingent upon chance and argued there is no evidence 

Biela did anything contingent upon chance.8

 The court asked if there was any 

evidence by affidavit or otherwise that Biela ever took a wager, and Biela’s 

counsel indicated there was not. The prosecutor conceded that parlay cards do 

not fit under the portion of the statute for possession of a gambling device but 

argued that the parlay cards were used to transmit gambling information which 

is illegal under the statute. The prosecutor noted that the definition of gambling 

information includes information intended to be used for professional 

gambling,9 and argued that professional gambling is defined in the statute that 

criminalizes it and that the applicable definition is one that “[a]ccepts or offers 

 

8 Ind. Code § 35-45-5-1(d) provides in part: “‘Gambling’ means risking money or other property for gain, 

contingent in whole or in part upon lot, chance, or the operation of a gambling device, but it does not include 

participating in: . . . (2) bona fide business transactions that are valid under the law of contracts.” 

9 Ind. Code § 35-45-5-1(f) provides that “[g]ambling information” means “(1) a communication with respect 

to a wager made in the course of professional gambling; or (2) information intended to be used for 

professional gambling.” 
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to accept for profit money or other property raised in gambling.”10 Transcript 

at 16. 

[8] The court asked if the probable cause affidavit indicated that there was an 

acceptance of money for professional gambling and noted that there had been a 

sworn statement that Greene physically took cash in exchange for one of the 

parlay cards. The prosecutor argued there was circumstantial evidence that the 

Appellees would return to collect their parlay cards and the money that had 

been wagered. The prosecutor indicated that this was mentioned in the 

affidavit which stated they returned to collect a bag. The court asked what was 

in the bag, and the prosecutor replied that she believed “agents would testify 

that that would be consistent with containing parlay cards and money. They 

would also return and pay out winners.” Id. at 20. The prosecutor further 

argued: “The wagers were filled out by individuals. Money was attached to 

them and they were put into a bag to be picked up by the four defendants.” Id. 

The court later asked “[s]o you’ve got evidence . . . that . . . there was some 

wagers being made,” the prosecutor replied affirmatively, the court asked “and 

why wasn’t that in the Affidavit,” and the prosecutor replied “I don’t believe we 

have to state our entire case within that Affidavit.” Id. at 20-21. The court 

stated “[w]ell enough to . . . get probable cause and . . . now you’re asking the 

Court to Amend the Charging Information.” Id. at 21. The prosecutor replied 

 

10 Ind. Code § 35-45-5-3(a) provides in part that a person who knowingly or intentionally “accepts, or offers 

to accept, for profit, money, or other property risked in gambling” commits professional gambling, a level 6 

felony.
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that the affidavit included the fact officers were able to place wagers, and the 

court stated: “One. One, with John Green[e] who pled guilty this morning.” 

Id. at 21. The prosecutor responded “Yes, Your Honor” and stated that the 

affidavit contained information that these individuals were observed multiple 

times running their routes and collecting their money and included substantial 

information that they knew they were transmitting gambling information. Id. 

[9] The court asked Officer Boyd if there was any information in the affidavit that 

indicated that the Appellees “took any cash in exchange – and made a wager? 

Took a wager,” and Officer Boyd testified “No, just the fact that they were – the

gathering up the cards and, and like – as she had said, the [sic] had a route and 

had provided that information.” Id. at 40-41. When asked if the men took 

money directly, Officer Boyd indicated he observed Liverman take money but 

not the other Appellees. When asked why that was not included in the 

affidavit, Officer Boyd indicated he felt he had sufficient information in the 

affidavit to support the charges. The court stated that it was surprising that an 

investigation of this magnitude would have such little information about a 

gambling operation that only indicated that one defendant, who has pled guilty,

took a bet on one occasion. The court noted that the motions to amend the 

charging informations were “not done within the 30 days of the original 
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omnibus hearing,” and stated “[i]t was done 20 days, so it was not timely 

filed.”11 Id. at 48. 

[10] On July 11, 2016, the court issued an Order on Defendants’ Motion to Dismiss 

and State’s Motions to Amend Information which denied the State’s motions to 

amend the charging informations and granted the motions to dismiss in each of 

the Appellees’ cases. The court found that parlay cards did not constitute 

gambling devices under Ind. Code § 35-45-5-4(a)(1). Further, the court noted 

that the State conceded at the hearing that its motion to amend was not timely 

filed pursuant to Ind. Code § 35-34-1-5. The court found that, though it has 

discretion to permit a belated amendment, the State’s argument that the 

Appellees’ substantial rights were not being violated was disingenuous. The 

court found that, in the first place, the State seeks to prosecute the Appellees 

under a totally different legal theory and different section of Ind. Code § 35-45-

5-4(a). Secondly, it found that the State identified certain activities “which it 

contends support the finding of probable cause” and that the “described 

activities fail to allege any criminal conduct; given the fact that the mere 

possession of parlay cards is not illegal.” Appellant’s Appendix, Volume 2, at 

43-44, 73-74, 104-105, 135-136. The court also found that, in its attempt to 

rescue its case, the State’s motions to amend were “supported only by the 

marginally modified affidavit” of Officer Boyd which “again fails to allege an 

 

11 The court scheduled the original omnibus date under each cause for April 21, 2016, and the State filed its 

requests to file amended informations on April 5, 2016, which was sixteen days before the omnibus date. 
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essential element of the crime of gambling . . . . ‘the risking of money or 

property on lot or chance,’ or in other words, the placement of a wager OR the 

making of a bet.” Id. at 44, 74, 105, 136. The court’s order also included the 

following in a footnote: 

It’s hard to believe that after three years of investigation that the 

Indiana Gaming Police were unable to establish any direct proof 

of illegal gambling other than the two wagers placed with 

Defendant John Greene; who has pled guilty. With respect to 

the conduct of the other charged defendants, the affidavit 

contains nothing more than speculation and conjecture. 

Criminal cases require much more proof than that. 

By contrast, in undercover drug cases investigated by the MCPD 

Drug Task Force, a confidential informant is outfitted with a 

wire and a ‘button cam’ to record the illegal exchange, together 

with prerecorded drug-buy cash. Use of such protocol, is 

standard operating procedure. The efforts of the Indiana Gaming 

Police fall woefully short of what is universally expected in such 

undercover operations. 

Id. at 44 n.3, 74 n.3, 105 n.3, 136 n.3. The court dismissed the charges against 

the Appellees. 

Discussion

[11] The issue is whether the trial court abused its discretion in denying the State’s 

motions to amend the charging informations and in dismissing the charges 

against the Appellees. The State argues that it sought to amend the charges to 

allege violations under subsection (a)(2) of the statute and that “[t]he operative 

facts supporting the charge remained the same, as the proffered amended 

charges alleged that the parlay cards, which contain point spread information, 
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constituted the ‘gambling information’ that the defendants transmitted or 

received.” Appellant’s Brief at 13. It notes that it sought the amendments

sixteen days prior to the omnibus date and argues that the Appellees had a 

reasonable opportunity to prepare for and defend against the proposed amended 

charges and that no trial date had been scheduled. The State further asserts that 

“the court clearly thought it mattered whether [Appellees] themselves were 

involved in actual gambling,” that it was not alleging the Appellees placed 

wagers or bets but only that they received or transmitted information that was 

intended to be used to engage in professional gambling, and that the facts 

alleged were sufficient to state the offense of promoting professional gambling. 

Id. at 16-17. It also argues that “whether the evidence will be sufficient to prove 

the offense beyond a reasonable doubt is not a consideration that may come 

into play at this stage; a court may not dismiss charges because it finds the 

evidence insufficient to prove the offenses” and that, “even if [it] were required 

to prove that [Appellees] engaged in gambling, a perceived lack of sufficient 

evidence to prove this fact would not be a proper basis for dismissal.” Id. at 18. 

[12] Biela and Liverman assert that “[t]he trial court dismissed the original and 

requested amended informations for want of probable cause.” Appellee Biela 

and Liverman’s Brief at 5. They argue that, “[w]ithout being presented 

evidence of ongoing gambling in a three year gambling investigation the judge 

was hard pressed to determine probable cause that was sufficient to charge the 

defendants with a gambling offense, ie what gambling activity was aided, 

induced, or caused” by Appellees and “before what gambling events did the 
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defendants knowingly and intentionally transmit or receive gambling 

information for those events as charged.” Id. at 6. They argue that Biela 

engaged in bona fide business transactions. They also argue that the trial 

court’s decision was based on the want of sufficient probable cause supporting 

the original and proposed amended informations and “[y]et the State has 

chosen to waive this issue on appeal and focus only on the issue of statutory 

interpretation.” Id. at 8. 

[13] Mazur and Czizek argue that the court was within its discretion when it granted 

the motions to dismiss the charges rather than allowing the State to make 

substantive amendments, that the proposed amendment constitutes a totally 

different crime and legal theory of prosecution, and that the court correctly 

ruled the amendment “was a violation of the defendant’s substantial rights.” 

Appellee Mazur and Czizek’s Brief at 8. They also argue that the probable 

cause affidavit “is void of facts of transmitting gambling information, which is 

information that is intended to be used for professional gambling,” and that 

“[t]here is nothing in the Probable Cause Affidavit supporting gambling 

charges” against Mazur or Czizek. Id. 

[14] In reply, the State argues that the proposed amended informations merely 

changed the subsection of the statute under which the charges were brought, 

that it is black-letter law in Indiana that a lack of probable cause is not a proper 

basis upon which charges may be dismissed, that the offense can be committed 

even if no one ever actually uses the information in order to place or receive a 
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bet or wager, and that the probable cause affidavit clearly alleges the receipt of 

the gambling information by Mazur and Czizek. 

[15] A charging information may be amended at various stages of a prosecution, 

depending on whether the amendment is to the form or to the substance of the 

original information, and whether an amendment to a charging information is a 

matter of substance or form is a question of law. Erkins v. State, 13 N.E.3d 400, 

405 (Ind. 2014) (citations omitted), reh’g denied. Ind. Code § 35-34-1-5(b) 

provides: 

The indictment or information may be amended in matters of 

substance and the names of material witnesses may be added, by 

the prosecuting attorney, upon giving written notice to the 

defendant at any time:

(1) up to:

(A) thirty (30) days if the defendant is charged 

with a felony; or

(B) fifteen (15) days if the defendant is charged 

only with one (1) or more misdemeanors;

before the omnibus date; or

(2) before the commencement of trial;

if the amendment does not prejudice the substantial rights of the 

defendant. . . . 

[16] A defendant’s substantial rights include a right to sufficient notice and an 

opportunity to be heard regarding the charge, and if the amendment does not 

affect any particular defense or change the positions of either of the parties, it 
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does not violate these rights. Erkins, 13 N.E.3d at 405 (citation omitted). 

Ultimately, the question is whether the defendant had a reasonable opportunity 

to prepare for and defend against the charges. Id. at 405-406 (citations omitted). 

[17] Here, the State’s proposed amendments to the charging informations against 

the Appellees do not prejudice their substantial rights. The original charging 

informations were filed on February 19, 2016, and the State’s requests to amend 

the informations were filed forty-six days later on April 5, 2016, before any trial 

date had been scheduled. Further, the original charging informations cited 

subsection (1) of Ind. Code § 35-45-5-4(a) and alleged the Appellees committed 

the offenses of promoting professional gambling based on their use of parlay 

cards for illegal football betting and wagers, and the proposed amended 

informations cited subsection (2) of the statute and alleged they committed the 

offenses by transmitting or receiving football game and point spread 

information. The original charging informations also alleged the Appellees 

committed the offense of corrupt business influence and were associated with a 

group of individuals who promoted illegal gambling through distribution, 

collection, and payments associated with parlay cards for illegal football betting 

and wagers, and the proposed amended informations alleged they were 

associated with a group of individuals who promoted illegal gambling. 

[18] Based upon the record, and in light of the fact the requests to amend were filed 

forty-six days after the original information and before any trial date had been 

scheduled, we conclude the Appellees had a reasonable opportunity to prepare 

for and defend against the charges as amended and that the trial court erred in 
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denying the State’s motions to amend the charging informations. See Blythe v. 

State, 14 N.E.3d 823, 830 (Ind. Ct. App. 2014) (holding that the defendant was 

not prejudiced by the trial court’s order granting the State’s motion to amend 

the charging information and that the defendant had a reasonable opportunity 

to prepare for and defend against the charges); Gomez v. State, 907 N.E.2d 607, 

611 (Ind. Ct. App. 2009) (holding the amended information did not prejudice 

the defendant’s substantial rights, that the time period between the amendment 

of the charging information and the jury trial was approximately ten months 

and gave the defendant the opportunity to prepare for the murder charge, and 

that the defendant could not show that he was prejudiced by the added charge 

as he had ample notice of the new charge and a significant amount of time to 

prepare a defense for the trial), trans. denied. 

[19] We review a trial court’s dismissal of a charging information for an abuse of 

discretion. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). In 

reviewing a trial court’s decision for an abuse of discretion, we reverse only 

where the decision is clearly against the logic and effect of the facts and 

circumstances. Id. 

[20] To the extent the trial court’s order dismissing the charges against the Appellees 

rested on a determination that the probable cause affidavit was defective or did 

not establish that probable cause existed to believe the Appellees committed the 

offenses of promoting professional gambling and corrupt business influence as 

alleged in the proposed amended information, we observe that Ind. Code § 35-

34-1-4 lists eleven possible grounds for dismissing a charging information and a 
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lack of probable cause is not one of those grounds.12 The Indiana Supreme 

Court has held that “lack of probable cause is not grounds for dismissing a 

charging information.” Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000) 

(noting that the statute allowing a court to dismiss contains no provision 

regarding a defective probable cause affidavit) (citing Hicks v. State, 544 N.E.2d 

500, 505 (Ind. 1989) (“The lack of probable cause is not a proper ground on 

which to predicate a motion to dismiss the information. The probable cause 

affidavit relates to the pre-trial detention of a defendant, not the charging 

 

12 Ind. Code § 35-34-1-4(a) provides: 

The court may, upon motion of the defendant, dismiss the indictment or information 

upon any of the following grounds:

(1) The indictment or information, or any count thereof, is defective under 

section 6 of this chapter.

(2) Misjoinder of offenses or parties defendant, or duplicity of allegation in 

counts.

(3) The grand jury proceeding was defective.

(4) The indictment or information does not state the offense with sufficient 

certainty.

(5) The facts stated do not constitute an offense.

(6) The defendant has immunity with respect to the offense charged.

(7) The prosecution is barred by reason of a previous prosecution.

(8) The prosecution is untimely brought.

(9) The defendant has been denied the right to a speedy trial.

(10) There exists some jurisdictional impediment to conviction of the defendant 

for the offense charged.

(11) Any other ground that is a basis for dismissal as a matter of law.

Also, Ind. Code § 35-34-1-8 provides in part that a motion to dismiss information under Ind. Code § 35-34-1-

4 shall be in writing, states when the court may deny the motion without conducting a hearing, states that if 

the motion is based upon the existence or occurrence of facts, the motion shall be accompanied by affidavits 

containing sworn allegations of these facts and that, if a hearing is necessary to resolve questions of fact, the 

court shall conduct a hearing and make findings of fact essential to the determination of the motion. 
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instrument.”); Gilliam v. State, 270 Ind. 71, 383 N.E.2d 297, 303 (1978) 

(observing “[t]he probable cause affidavit is not the means by which the accused 

is charged with a crime” but “is a means of satisfying the constitutional and 

statutory requirements that the pre-trial detention of the accused to face the 

charge be based upon a determination, by a neutral and detached magistrate, 

that probable cause exists to believe that the accused committed the crime”)), 

reh’g denied; see also State v. I.T., 4 N.E.3d 1139, 1142 (Ind. 2014) (noting that 

lack of probable cause is not grounds for dismissing a charging information 

against an adult offender and citing Flowers); Pond v. State, 808 N.E.2d 718, 721 

(Ind. Ct. App. 2004) (observing that lack of probable cause is not grounds for 

dismissing a charging information and citing Flowers), trans. denied; State v. King, 

502 N.E.2d 1366, 1369 (Ind. Ct. App. 1987) (noting that the deficiency of a 

probable cause affidavit is not a ground for dismissal of the information as the 

probable cause affidavit is not the manner by which a defendant is charged with 

a crime); State v. Palmer, 496 N.E.2d 1337, 1341 (Ind. Ct. App. 1986) (holding 

that neither Indiana statute nor case law require a charging information to be 

accompanied by a probable cause affidavit unless the information is to serve as 

the basis for an arrest warrant, that the lack of probable cause is not grounds for 

dismissal, and that the trial court erred in granting a motion to dismiss for lack 

of probable cause). Thus, dismissal of the informations for lack of probable 

cause was improper. 

[21] Further, as a general rule, when a defendant files a motion to dismiss an 

information, the facts alleged in the information are to be taken as true. State v. 
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Morgan, 60 N.E.3d 1121, 1125 (Ind. Ct. App. 2016) (citing State v. Bilbrey, 743 

N.E.2d 796, 798 (Ind. Ct. App. 2001)), trans. denied; Isaacs, 794 N.E.2d at 1122; 

King, 502 N.E.2d at 1368. “The purpose of the information is to allege facts 

sufficient in law to support a conviction and to sufficiently charge the crimes so 

that a defendant may prepare a defense and be protected against double 

jeopardy in the future.” Isaacs, 794 N.E.2d at 1122; see also King, 502 N.E.2d at 

1370. The State is not required to include detailed factual allegations in a 

charging information. Gutenstein v. State, 59 N.E.3d 984, 995 (Ind. Ct. App. 

2016), trans. denied. “Questions of fact to be decided at trial or facts constituting 

a defense are not properly raised by a motion to dismiss.” Isaacs, 794 N.E.2d at 

1122 (citing King, 502 N.E.2d at 1370). “Motions to dismiss, before trial, 

directed to the sufficiency of the evidence, are improper.” State v. Houser, 622 

N.E.2d 987, 988 (Ind. Ct. App. 1993) (citation omitted), reh’g denied, trans. 

denied; see also Bilbrey, 743 N.E.2d at 798 (noting it is improper for a trial court 

to grant a defendant’s motion to dismiss an information when it is based on the 

sufficiency of the evidence). “However, an information may be dismissed if the 

facts stated in the information do not constitute an offense.” Isaacs, 794 N.E.2d 

at 1122. “A hearing on a motion to dismiss is not a trial of the defendant on the 

offense charged.” Morgan, 60 N.E.3d at 1126 (citing Isaacs, 794 N.E.2d at 1122 

(noting that the facts permitted to be raised under Ind. Code § 35-34-1-8 

typically concern only pre-trial matters)). 

[22] The State’s proposed amended charging informations adequately alleged the 

crimes of promoting professional gambling and corrupt business influence. The 
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informations listed the statutory provisions and the date and county of the 

alleged crime of the alleged offenses. Taking the facts in the proposed amended 

informations as true, the State charged the elements of the offenses sufficiently 

to allow the Appellees the opportunity to prepare a defense. The trial court 

essentially granted the Appellees a mini-trial and ruled that there was 

insufficient evidence to charge them. A hearing on a motion to dismiss is not a 

trial on the charged offenses, Morgan, 60 N.E.3d at 1126, and a motion to 

dismiss prior to trial directed to the sufficiency of the evidence is improper. 

Houser, 622 N.E.2d at 988. Also, to the extent it is asserted that Biela engaged 

in bona fide business transactions, we note that “whether one has a statutory 

defense to the charges in an information goes beyond the issues that may be 

decided by a motion to dismiss and instead is a matter appropriately decided at 

trial.” Isaacs, 794 N.E.2d at 1122-1123. 

[23] Accordingly, we conclude that the trial court abused its discretion in granting 

the Appellees’ motions to dismiss. See Houser, 622 N.E.2d at 988 (holding that 

the charging informations clearly alleged sufficient facts to constitute the 

offenses charged, that motions to dismiss before trial directed to the sufficiency 

of the evidence are improper, and that the trial court erred in granting the 

defendants’ motions to dismiss); Bilbrey, 743 N.E.2d at 799 (holding it would be 

necessary to develop the facts of the case to determine whether the defendant 

operated a motor vehicle, that the fact the defendant denied the allegation 

stating he was operating a motor vehicle does not demonstrate as a matter of 

law that he was not operating a motor vehicle, and that the trial court erred in 
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granting the defendant’s motion to dismiss the charges against him); King, 502 

N.E.2d at 1370 (holding that the State’s informations adequately charged the 

crime of unlawfully selling fireworks, that each information listed the statutory 

provisions, the date and county of the alleged crime, and charged the 

defendants with unlawfully selling at retail fireworks to an undercover police 

officer, that the purpose of the information is to allege facts sufficient in law to 

support a conviction and to sufficiently charge the crimes so that a defendant 

may prepare a defense and be protected against double jeopardy in the future, 

that taking the facts alleged in the information as true the State had charged the 

elements of the crime sufficiently to allow the defendants the opportunity to 

prepare a defense, that whether the defendants’ alleged defense was adequate 

was a matter appropriately decided at trial, and thus that the trial court erred in 

granting the motion to dismiss). 

Conclusion

[24] For the foregoing reasons, we reverse the order of the trial court denying the 

State’s motions to amend the charging informations and dismissing the charges 

against the Appellees. 

[25] Reversed and remanded. 

Vaidik, C.J., and Bradford, J., concur.