State v. Dugan

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

STEVE CARTER RICHARD KIEFER
Attorney General of Indiana DARLENE SEYMOUR
Kiefer & McGoff
CYNTHIA L. PLOUGHE Indianapolis, IN
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

STATE OF INDIANA, )
)
Appellant (Defendant Below), )
) 49S02-0212-CR-671
v. ) in the Supreme Court
)
JOHN C. DUGAN, ) 49A02-0108-CR-513
) in the Court of Appeals
Appellee (Plaintiff Below). )

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Charles Wiles, Judge
Cause No. 49F09-0003-DF-052726

August 22, 2003

SHEPARD, Chief Justice.
The State indicted officer John C. Dugan, Jr. of the Indiana State
Excise Police, for official misconduct. It alleged that he accepted
gratuities from the owner of two companies to which the Alcoholic Beverage
Commission had issued permits to sell alcoholic beverages. Was it proper
for the State to charge Dugan with official misconduct? We conclude it
was.

Facts and Procedural History

The charging instrument alleged that Dugan “accompanied his
supervisor, the Superintendent of the Indiana State Excise Police, for the
purposes of socializing, drinking alcoholic beverages, dining and engaging
in sexual activity while on duty.” (App. at 12.) Count I charged Dugan
with ghost employment, a class D felony. Counts II and III charged Dugan
with official misconduct, a class A misdemeanor. The official misconduct
charges alleged that on February 8 and 12, 1999, Dugan violated Ind. Code
§ 7.1-5-5-2 for having accepted gratuities from Bradley Hirst, sole owner
of two companies that the Indiana State Alcoholic Beverage Commission
(“ABC”) issued permits to sell alcoholic beverages.[1]

Dugan moved to dismiss the entire indictment on procedural grounds.
He moved to dismiss Counts II and III on substantive grounds, contending
that because Hirst had already received the permit from the ABC, the
statute was inapplicable since it prohibits receiving gratuities from
someone “applying for or receiving a permit,” not a holder of a permit.

The trial court declined to dismiss the entire indictment, but
granted Dugan’s motion to dismiss Counts II and III. It subsequently
granted the State’s motion to dismiss Count I.

The State appealed. The Court of Appeals affirmed the trial court’s
dismissal of the official misconduct counts, on a rationale different than
that expressed by the trial court. State v. Dugan, 769 N.E.2d 235, 238
(Ind. Ct. App. 2002). It did not address whether Ind. Code § 7.1-5-5-2 as
written applies to holders of permits; rather it upheld the trial court’s
decision on grounds that “the Official Misconduct statute was not the
appropriate statute with which to charge Dugan” because there was another
statute applicable. Id.

We grant transfer to determine: 1) whether Ind. Code § 7.1-5-5-2 is
applicable to “holders” of a permit and 2) whether the State has discretion
in charging a defendant with any applicable statute where multiple statutes
are applicable.

I. Does “Receiving” Mean “Holding”?

The State charged Dugan with acting in contravention to Ind. Code §
7.1-5-5-2, which makes it unlawful for a commissioner, officer or employee
of the commission, or member of a local board, to receive a gratuity from a
person “applying for or receiving” a permit.[2] Everyone agrees that
“applying for” refers to applicants. It is undisputed that Hirst was not
applying for a permit when the alleged violation occurred. What is at
issue here is the term “receiving.”

While Dugan claims he did not violate § 7.1-5-5-2 because it does not
apply to someone already in possession of a permit, the State contends that
“receiving” a permit is an ongoing process—that the permittee’s holding of
a permit is a continuing action of “receiving” a permit. Essentially, the
State argues that the term “receiving” includes permit holders.

The trial court concluded that the language in Ind. Code § 7.1-5-5-2
was unclear, and that if the legislature intended to criminalize the
conduct described in Counts II and III involving a person holding a permit,
they could have so stated. Put another way, it agreed with Dugan that §
7.1-5-5-2 does not prohibit such officials from receiving gratuities from
persons who already hold permits.

The primary goal in statutory construction is to determine, give
effect to, and implement the intent of the legislature. Collier v.
Collier, 702 N.E.2d 351 (Ind. 1998). “[W]ords are to be given their plain,
ordinary, and usual meaning, unless a contrary purpose is shown by the
statute itself.” Cox v. Worker’s Comp. Bd., 675 N.E.2d 1053, 1057 (Ind.
1996). It is just as important to recognize what the statute does not say
as it is to recognize what it does say. Clifft v. Indiana Dept. of State
Revenue, 660 N.E.2d 310 (Ind. 1995). Because courts must give deference to
such intent whenever possible, “courts must consider the goals of the
statute and the reasons and policy underlying its enactment.” MDM Inv. v.
City of Carmel, 740 N.E.2d 929, 934 (Ind. Ct. App. 2000).

The legislature itself has articulated the purposes of Title 7.1: to
protect the economic welfare, health, peace and morals of the people and to
regulate and limit the manufacture, sale, possession and use of alcohol and
alcoholic beverages. Ind. Code Ann. § 7.1-1-1-1(a), (b) (West 1982). It
is clear that these purposes apply equally, if not more so, to holders of
permits as to those applying for a permit.

To accomplish such purposes, the ABC issues permits which entitle the
permit holder to deal in alcoholic beverages. See Ind. Code Ann. §§ 7.1-3-
1-1, 7.1-1-3-29 (West 1982). This entitlement, however, is hardly
unlimited. The state excise police officers are ABC employees charged with
the duty and power to enforce the provisions of Title 7.1. Ind. Code Ann.
§§ 7.1-2-2-9 (West 1982 & Supp. 2002). As such, they can revoke or suspend
a permit for a violation of one of the provisions. Ind. Code Ann. § 7.1-3-
23-2 (West 1982). There are also statutory prohibitions imposed upon ABC
employees so as to maintain the integrity of the commission. One such
prohibition is that contained in Ind. Code § 7.1-5-5-2 (unlawful to receive
gratuity, commission, or profit of any kind from a person applying for or
receiving a permit under this title).

Dugan points out that other provisions of Title 7.1, particularly the
section immediately preceding the one at issue, Ind. Code § 7.1-5-5-1,
include the term “permittee,” which is defined as a “person who is the
holder of a valid permit.” On such basis, Dugan argues that the fact that
Ind. Code § 7.1-5-5-2 says, “applying for or receiving a permit” and omits
the term “permittee” demonstrates that the legislature purposely excluded
permittees.

Actually, Title 7.1 uses a variety of terms to describe someone who
possesses a permit. It includes phrases such as “holder of a permit,”
“person or entity that has a permit,” or “a person to whom a permit has
been issued.”[3] Thus, omitting the word “permittee” is not by itself
compelling proof of the legislature’s objective.

We must consider the goals and policy underlying the statute’s
enactment. The General Assembly has told us at least one thing concerning
its intent: that the provisions of Title 7.1 should be liberally
construed. Ind. Code Ann. § 7.1-1-2-1 (West 1982).

Two interpretations can be reasoned by the fact that the provision
does not use the word “permittee.” The legislature’s intent could have
been to include only persons in the process of applying for a permit, or it
could have intended to make the provision all-inclusive, meaning applicants
and holders.

The first interpretation gives the word receiving its literal meaning:
“coming into possession of.” Merriam Webster’s Collegiate Dictionary 1894
(10th Ed. 1993). Under this approach, the statute would apply to a person
only from the moment he or she fills out an application form to the moment
the permit is physically handed over to the applicant (i.e., the moment
when the applicant is “receiving” the permit).

Under the second interpretation, one could deem “receiving” to mean
someone receiving the benefits of a permit, which would include a permit
holder. Thus the statutory prohibition would be effective upon both
applicants and holders.

Because statutes are examined as a whole, it is often necessary to
avoid excessive reliance on a strict literal meaning or the “selective
reading of individual words.” Collier v. Collier 702 N.E.2d 351, 354 (Ind.
1998). The legislature is presumed to have intended the language used in
the statute to be applied logically and not to bring about an unjust or
absurd result. Riley v. State, 711 N.E.2d 489 (Ind. 1999). Thus, we
should consider the objects and purposes of the statute as well as the
effects and repercussions of such an interpretation. State v. Windy City
Fireworks, Inc., 600 N.E.2d 555, 558 (Ind. Ct. App. 1992), adopted by 608
N.E.2d 699 (Ind. 1993).

Dugan argues that “the word ‘receiving’ must be given its plain and
ordinary meaning,” and someone who already has a permit is not “coming into
the possession of a permit.” (Appellee Br. at 16-17.) He also asserts
that a person “receiving” a permit is “someone in the process of being
issued a permit, but is not yet a permit holder.” (Appellee Br. at 14.)

Interpreting “receiving” to mean someone in the process of being
issued a permit, but is not yet a permit holder, would render the term
redundant and hence useless since a person “applying for” a permit is also
someone in the process of being issued a permit but not yet a permit
holder. Had the legislature intended this section to apply only to people
in the process of being issued a permit but not yet a permit holder, it
could have just as easily stopped at “applying for.” The fact that it went
on to add “or receiving” suggests it intended to include more than just
applicants.

Moreover, the effect of using the literal definition of “receiving”
would be that an ABC employee would have to be handing over the permit to
the applicant with one hand and accepting the gratuity with the other hand
in order to violate the statute. Any point after that would fall outside
the statutory prohibition because the person would no longer be receiving a
permit; he would now be a permit holder. This would be an illogical
result.

The second interpretation better effectuates the purposes of the
statute, namely regulating activities concerning alcoholic beverages. Such
purposes are premised upon activities such as the sale, possession, and use
of alcoholic beverages. In order for Ind. Code § 7.1-5-5-2 to be in line
with the purposes of Title 7.1, it must also apply to holders of permits
because a “permit” is what allows such activities to take place. A permit
entitles its holder “to manufacture, rectify, distribute, transport, sell,
or otherwise deal in alcoholic beverages.” Ind. Code Ann. § 7.1-1-3-29
(West 1982).

As Dugan points out, such permits are valuable and limited in number.
A permit is only valid for one year, unless otherwise stated in Title 7.1.
Ind. Code Ann. § 7.1-3-1-3 (West 1982 & Supp. 2002). At the end of the
year, the permit is fully expired and null and void, and the permittee must
go through the same application process as any other person applying for
the first time in order to renew his permit. Id. Thus, a person renewing
a permit is in effect obtaining a new one.

The General Assembly was clearly worried about officers being
improperly influenced by people seeking a permit. Because a holder of a
permit must renew his permit every year, he stands in the same shoes as an
applicant. A permit holder may also exert improper influence on an ABC
officer so as to secure renewal of his permit. There is no other statute
in Title 7.1 that prohibits ABC officers or employees from accepting
gratuities from permit holders. Considering the value of such permits, we
find it hard to believe that the legislature “purposely excluded from the
statute persons already in possession of a permit,” as Dugan contends.
(See Appellee Pet. for Transfer at 3.) Further, we cannot conceive of any
persuasive public policy reason for excluding permit holders.

Liberally construing the provisions in Title 7.1 and analyzing its
delineated purposes, we opt for the second liberal interpretation and
conclude that the legislature’s use of the term "receiving” indicates its
intent to prohibit acceptance of gratuities by an ABC employee or officer
from someone already receiving the benefits of a permit, namely a permit
“holder” or permittee. The alternate interpretation would allow an officer
to freely accept gratuities by merely waiting until the permittee holds the
permit in hand before the ABC employee takes a payoff. We do not think the
legislature intended such a result. We therefore conclude that the trial
court erred in dismissing the State’s official misconduct charges against
Dugan.

II. Charging Discretion

We now turn to Dugan’s second argument. Based on the contention that
Dugan violated § 7.1-5-5-2, the State charged Dugan with official
misconduct pursuant to Ind. Code § 35-44-1-2, which provides in pertinent
part: “A public servant who: (1) knowingly or intentionally performs an
act that he is forbidden by law to perform; … commits official misconduct,
a Class A misdemeanor.”

On appeal, the court held “the official misconduct statute was not the
appropriate statute with which to charge Dugan.” Dugan, 769 N.E.2d at 238.
It said that “while Ind. Code § 35-44-1-2 may generally apply to a person
who violates Ind. Code § 7.1-5-5-2, Ind. Code § 7.1-5-1-8 is intended to
cover violations of Title 7.1 that do not have a specific penalty already
attached.” Id. Because § 7.1-5-5-2 does not provide a specific punishment
for the prohibited conduct, the Court of Appeals held that § 7.1-5-1-8 was
the appropriate statute with which to charge Dugan. Indiana Code § 7.1-5-1-
8 provides: “A person who violates a provision of this title for which no
other penalty is provided commits a Class B misdemeanor.”

The State contends that it has discretion concerning the filing of
charges. We agree. Where multiple statutes are applicable under given
circumstances, the State has the discretion of prosecuting under any or all
of the applicable statutes. See Hendrix v. State, 759 N.E.2d 1045 (Ind.
2001); Skinner v. State, 736 N.E.2d 1222 (Ind. 2000); Adams v. State, 262
Ind. 220, 314 N.E.2d 53, 56 (1974). Here, both Ind. Code §§ 7.1-5-1-8 and
35-44-1-2(1) can apply. The State chose to charge Dugan under the latter
statute, which proscribes official misconduct.

Although the language of Ind. Code § 35-44-1-2(1) is broad and
general, the heart of the issue in an official misconduct charge is
explicit: whether the act was done by a public official in the course of
his official duties. See Daugherty v. State, 466 N.E.2d 46 (Ind. Ct. App.
1984) (Judge Ratliff concurring). There must be a connection between the
charge and the duties of the office. A charge for misconduct must rest
upon criminal behavior that is related to the performance of official
duties. See e.g. State v. Schultz, 367 A.2d 423 (N.J. 1976) (forgeries of
endorsements on checks received in payment of traffic fines which forgeries
were done by clerk receiving the checks). Needless to say, if the
misconduct bears no relation to the official duties, there is no official
misconduct. Id. See e.g. Kauffman v. Glassboro, 437 A.2d 334 (N.J. Super.
Ct. App. Div. 1981) (burglary by a police officer held unrelated to
official duties).

In the case at bar, Dugan was employed as a state excise police
officer for the Indiana ABC. The Indiana State Excise Police is the
enforcement arm of the ABC, charged with the primary responsibility of
policing the alcoholic beverage industry in Indiana.[4] The excise police
enforce the laws that regulate permit holders – those who are legally
permitted to sell and serve alcoholic beverages, as well as those not
legally entitled to sell alcoholic beverages.[5]

Indiana Code § 7.1-5-5-2 makes it unlawful for an officer of the
commission to receive a gratuity from a person applying for or receiving a
permit to sell alcoholic beverages. A violation of Ind. Code § 7.1-5-5-2
obviously bears a significant connection to the official duties of an
excise officer. That there is another equally applicable statute is of no
consequence. Therefore, it was appropriate and within the State’s
discretion to decide to charge Dugan with official misconduct.

Conclusion

We reverse the judgment of the trial court and remand with
instructions to reinstate Counts II and III.

SULLIVAN and BOEHM, JJ., concur.
RUCKER, J., concurs as to Part II.
DICKSON, J., dissents with separate opinion in which RUCKER, J., joins.
DICKSON, Justice, dissenting.
Despite the majority's elaborate analysis of the interpretation of
the word "receiving" as it appears in Indiana Code § 7.1-5-5-2, I believe
that this criminal statute must be narrowly construed, in accordance with
several well recognized due process principles--variously framed in our
jurisprudence as the "void for vagueness doctrine," the "rule of lenity,"
and the "fair notice requirement."
The "void for vagueness" doctrine requires that a penal statute define
the criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. Kolender v. Lawson,
461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983). The
"fair notice" requirement "give[s] a person of ordinary intelligence fair
notice that his contemplated conduct is forbidden by the statute. The
underlying principle is that no man shall be held criminally responsible
for conduct which he could not reasonably understand to be proscribed."
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed.
989, 996 (1954). The rule of lenity is premised on two ideas: first, " 'a
fair warning should be given to the world in language that the common world
will understand, of what the law intends to do if a certain line is passed'
" and second, legislatures and not courts should define criminal activity.
United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 522, 30 L.Ed.2d
488, 496-97 (1971) (quoting McBoyle v. United States, 283 U.S. 25, 27, 51
S.Ct. 340, 341, 75 L.Ed. 816, 818 (1931)). These principles work in tandem
towards one result: the strict construction of penal statutes. See
Healthscript, Inc. v. State, 770 N.E.2d 810, 815-16 (Ind. 2002); Ellis v.
State, 736 N.E.2d 731, 737 (Ind. 2000).
Because I believe that the majority's expansion of the word
"receiving" to encompass the holder of a permit is a violation of these
principles, I respectfully dissent.
RUCKER, J., concurs.

-----------------------
[1] The ABC has now become the Alcohol and Tobacco Commission. See Ind.
Code Ann. § 7.1-2-1-1 (West 1982 & Supp. 2002) (as amended by P.L. 204-
2001, Sec. 18).
[2] The section as a whole reads:
It is unlawful for a commissioner, an officer or employee of the
commission, or a member of a local board, to receive a gratuity,
commission, or profit of any kind from a person applying for or
receiving a permit under this title. A person who violates the
provisions of this section also shall be dismissed as provided in this
title.
Ind. Code Ann. § 7.1-5-5-2 (West 1982).
[3] See e.g., Ind. Code Ann. §§ 7.1-2-1-12, 7.1-3-1-20, 7.1-3-1-21 (West
1982 & Supp. 2002).
[4] See www.drugs.indiana.edu/indiana/excise.html.
[5] Id.