FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ABHISHEK CHAUDHARY GREGORY F. ZOELLER
ANDREW AULT Attorney General of Indiana
Indiana Legal Services
Indianapolis, Indiana ELIZABETH ROGERS FILED
Deputy Attorney General Jun 21 2012, 8:42 am
Indianapolis, Indiana
CLERK
of the supreme court,
court of appeals and
tax court
IN THE
COURT OF APPEALS OF INDIANA
BYRON CHAN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1110-MI-1024
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Theodore M. Sosin, Judge
The Honorable Burnett Caudill, Magistrate
Cause No. 49D02-1003-MI-12990
June 21, 2012
OPINION - FOR PUBLICATION
SHEPARD, Senior Judge
When a shoplifter steals goods priced at $97, does the $7 in sales tax that would
have been due if he had purchased the items mean that their “retail value” was $104 such
that the forfeiture statutes entitle the State to seize the car the thief used to drive to the
scene of the crime?
FACTS AND PROCEDURAL HISTORY
In February 2010, a loss prevention officer employed by a Menards store in
Indianapolis detained appellant Byron Chan after Chan left the store carrying various
electronics items (like two garage door remotes and an ear bud case) for which he had not
paid. The Menards employee called the Indianapolis Metropolitan Police Department,
whose officers came to the store and took Chan into custody.
Aside from whatever proceedings may have occurred under the criminal law, the
State filed a complaint seeking forfeiture of the Honda that Chan used in driving to and
expected to use in driving away from the store.
After a trial on the merits, the court granted the State’s petition. It ordered the
vehicle forfeited for the use of the Indianapolis Metropolitan Police Department and sold
for the benefit of the Marion County Law Enforcement Fund. This appeal followed.
ISSUE
Indiana’s civil forfeiture statutes provide that a vehicle may be forfeited if it is
used or intended to be used to transport any stolen or converted property, “if the retail or
repurchase value of that property is one hundred dollars ($100) or more.” Ind. Code §
34-24-1-1(a)(1)(B).
2
DISCUSSION AND DECISION
Unsurprisingly, the Code does not provide a detailed definition of “retail or
repurchase value” that answers the question at issue.
Chan argues that the overall legislative scheme for the sales tax treats the tax as an
amount separate from the value of the goods purchased. Section 6-2.5-2-1 provides that
the sales tax is paid “to the retail merchant as a separate added amount to the
consideration in the transaction.” And, he cites an ordinary definition of the word
“consideration,” which is “[s]omething of value.” Black’s Law Dictionary 300 (7th ed.
1999). He argues that the tax cannot be considered part of the value of the goods
inasmuch as it is calculated on the basis of the value of the goods.
The State responds by noting that because merchants must collect sales tax from
customers as part of a retail transaction, Ind. Code § 6-2.5-2-1, common understanding
would be that the retail sale encompasses both the price of the goods and the amount of
the tax. “Retail value” for purposes of the forfeiture statute, says the State, is “effectively
the full amount the consumer must pay.” Appellee’s Br. p. 4.
Forfeitures such as the present case are civil in nature, and the standard of review
for claims of insufficient evidence proceeds under the general civil standard. The
reviewing court considers the evidence most favorable to the judgment and reverses on
evidentiary grounds only if there is a failure of proof. $100 v. State, 822 N.E.2d 1001
(Ind. Ct. App. 2005), trans. denied. Where the issue turns on a question of law, review is
de novo. Tankersley v. Parkview Hosp., 791 N.E.2d 201 (Ind. 2003). As the parties do
3
not dispute any of the facts necessarily found by the trial court, the issue here is solely
one of statutory interpretation.
Both Chan and the State have advanced entirely respectable interpretations of the
forfeiture statute. One says “retail value” is the price of the goods without tax, and the
other says most people think of value as how much they had to pay when they purchased
the goods.
In the presence of two competing reasonable interpretations, courts construe
forfeiture statutes much in the same way they construe statutes creating crimes.
Hornbook law says that criminal statutes are construed according to a rule of lenity that
serves to protect against creating a crime by mere construction. 8 Indiana Law
Encyclopedia Criminal Law § 7 (2004). Likewise, forfeitures are not favored in the law,
and statutes authorizing forfeitures are strictly construed. 36 Am. Jur. 2d Forfeitures and
Penalties § 8 (2011); see also Gomez v. Vill. of Pinecrest, 17 So. 3d 322 (Fla. Dist. Ct.
App. 2009), approved, 41 So. 3d 180 (Fla. 2010); People v. Borash, 354 Ill. App. 3d 70,
820 N.E.2d 74 (Ill. App. Ct. 2004), appeal denied.
Of course, application of this canon leads to the conclusion that “retail or
repurchase value” should be read as meaning the price of the goods without the addition
of the sales tax due on the transaction.
CONCLUSION
We thus reverse the trial court.
CRONE, J., and BRADFORD, J., concur.
4