dissenting.
I respectfully dissent. First, although permissible, I find it problematic that the majority has created an argument on behalf of the defendant, completely altering the stated issue in this appeal. Second, after raising the issue of improper charging sua sponte, I believe that the majority improperly applies the law.
The issued raised on appeal was whether the statute under which the defendant was charged, Indiana Code § 9 — 30—5—1(b), applies to conduct committed on private property. This was the single issue briefed by both the State and the defendant in their appellate briefs. Indeed, to the extent that the issue was whether the Legislature intended to include behaviors such as this within the parameters of Indiana Code § 9 — 30—5—1(b), we know that it did. Specifically, Indiana Code § 9-30-5-9 provides, “It is not a defense in an action under this chapter that the accused person was operating a vehicle in a place other than on a highway.” Thus, from the plain language of the statute, we can conclude that the Legislature intended that the location of drunken driving be immaterial for the purpose of criminal prosecution. Instead of addressing this question or the related broader question of whether the Legislature could constitutionally extend this prohibition to private property, the majority chose to turn this case into one purely about prosecutorial discretion. While we may raise issues sua sponte, see Reffett v. State, 844 N.E.2d 1072, 1073 (Ind.Ct.App.2006), to do so should, in my view, be carefully considered and restrained. The danger inherent in deciding a case upon issues raised sum sponte is that our view of the broader picture or nuances may be limited compared to cases in which these issues are fully briefed.
In my view, the majority’s decision to mold this case into one about prosecutorial discretion has resulted in an incorrect application of the law. The majority correctly describes Indiana’s long-standing law regarding prosecutorial discretion. Specifically, the majority explains that “when two criminal statutes overlap such that either may cover a given set of facts, the *1149prosecutor has the discretion to charge under either statute.” Slip op. at 9 (citing Skinner v. State, 736 N.E.2d 1222, 1222 (Ind.2000)). See also Hendrix v. State, 759 N.E.2d 1045, 1047 (Ind.2001). In such a case, “the State is not required to prosecute under the more specific of two statutes or under the statute carrying the lesser penalty.” Slip op. at 9 (citing Beech v. State, 162 Ind.App. 287, 319 N.E.2d 678, 683 (1974)). See also Kindred v. State, 254 Ind. 127, 258 N.E.2d 411, 413 (1970); Townsend v. State, 673 N.E.2d 503, 507 (Ind.Ct.App.1996); Arnold v. State, 162 Ind.App. 402, 319 N.E.2d 697, 700 (1974), reh’g denied.
With the correct legal framework laid, the majority, in my view, fails to correctly apply the law. Recognizing the general applicability of both Indiana Code § 9-30-5-2 and Indiana Code § 14-16-1-23(a)(2)(A) to the facts before us, the majority nonetheless concludes, “[I]t is apparent to us that the narrowly drawn off-road vehicle statutes more clearly reflect the spirit and intent of our legislature.... ” Slip op. at 9. The majority bases this conclusion upon the specificity of Indiana Code § 14-16-l-23(a)(2)(A) and notes that the operation of an off-road vehicle does not require a driver’s license while operation of a vehicle upon a roadway does. This distinction is irrelevant to the question of whether the prosecutor had the discretion to charge Manuwal with Operating While Intoxicated.
Our Supreme Court has expressly rejected the argument that the existence of a more specific statute implies that the Legislature intended defendants to be charged under it. In Skinner v. State, two statutes applied to the defendant’s conduct. The State charged the defendant with defrauding a financial institution, but the more specific charge would have been check fraud. The defendant argued that the Legislature intended that she be charged with check fraud, but this Court reasoned, in an opinion summarily affirmed by our Supreme Court,8 “If the Legislature did not wish to include an act which constitutes check fraud within the defrauding a financial institution statute, it could have specifically excluded acts constituting check fraud from the purview of the defrauding a financial institution code section. It did not do so.” Skinner v. State, 732 N.E.2d 235, 238 (Ind.Ct.App.2000), summarily aff'd, 736 N.E.2d at 1222. Because the “best evidence of legislative intent is the language of the statute itself, and all words must be given their plain and ordinary meaning unless otherwise indicated by statute,” Hendrix, 759 N.E.2d at 1047 (citation omitted), and the language of Indiana Code chapter 9-30-5 expressly allows for charges of Operating While Intoxicated for driving intoxicated while off-highway, see Ind.Code § 9-30-5-9, I believe that it is clear under our case law that the prosecutor in this ease had the discretion to charge Manuwal under either statute. Manuwal was not improperly charged.
For the foregoing reasons, I respectfully dissent.
. Skinner, 736 N.E.2d at 1222 (citing Ind. Appellate Rule 11(B)(3)).