State v. Levandowski

                                  I N     T H E    S U P R E M E   C O U R T   O F     T E N N E S S E E FILED
                                                           A T K N O X V I L L E
                                                  ( H E A R D A T M O R R I S T O W N )                    October 6, 1997

                                                                                                         Cecil Crowson, Jr.
                                                                                                         Appellate C ourt Clerk

S T A T E   O F   T E N N E S S E E                                        )       F O R   P U B L I C A T I O N
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F o r   A p p e l l a n t :                                                F o r     A p p e l l e e :

K E N N E T H F .       I R V I N E ,     J R .                            J O H N K N O X W A L K U P
K n o x v i l l e ,     T N                                                A t t o r n e y G e n e r a l         a n d       R e p o r t e r

                                                                           M I C H A E L E . M O O R E
                                                                           S o l i c i t o r G e n e r a l

                                                                           E L I Z A B E T H T . R Y A N
                                                                           A s s i s t a n t A t t o r n e y           G e n e r a l
                                                                           N a s h v i l l e , T N

                                                                           H . G R E E L E Y W E L L S ,             J R .
                                                                           D i s t r i c t A t t o r n e y           G e n e r a l

                                                                           N A N C   Y S T A L L A R D H A R R
                                                                           B A R R   Y P . S T A U B U S
                                                                           A s s i   s t a n t D i s t r i c t A t t o r n e y s
                                                                             G e n   e r a l
                                                                           B l o u   n t v i l l e , T N




                                                               O P I N I O N
A F F I R M E D                                                          B I R C H , J .
                  In   this   appeal,1   we    must   determine    whether a false

response from an individual to an inquiry made by a law enforcement

officer constitutes a false report within the meaning of Tenn. Code

Ann. § 39-16-502(a)(1) (1991).                After careful review, we hold that

§ 39-16-502(a)(1) applies to statements volunteered or initiated by

an individual but does not apply to statements made in response to

inquiries by law enforcement officers.                  Accordingly, the judgment

of the Court of Criminal Appeals is affirmed.



                  Betty   Levandowski,        the   defendant,    was   convicted    of

aggravated child abuse and making a false report.                         On appeal,

Levandowski argued that the false report statute was “overly broad

and vague.”            The intermediate court affirmed the conviction for

aggravated child abuse and reversed the conviction for making a

false report. We granted the State’s application for permission to

appeal and limited the grant to the “false report” issue.



                                               I



                  On May 19, 1994, an officer with the Kingsport Police

Department went to Levandowski’s home to investigate a report of


          1
     Oral argument was heard in this case on May 7, 1997, in
Morristown, Hamblen County, Tennessee, as part of this Court’s
S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students)
project.

                                               2
suspected child abuse.     Upon arrival, the officer spoke with

Levandowski and asked to see the child. Levandowski responded that

she had put the boy on a bus to Chicago and if the officer did not

believe her, he could look around.       Later, however, the child was

found in a neighboring residence.         Levandowski was subsequently

indicted for and convicted of a violation of Tenn. Code Ann. § 39-

16-502(a)(1) for her false response to the officer’s question as to

the child’s whereabouts.



                                 II



           The construction of a statute is a question of law, and

thus, our review is de novo.   Roseman v. Roseman, 890 S.W.2d 27, 29

(Tenn. 1994); The Beare Co. v. Tennessee Dept. of Revenue, 858

S.W.2d 906, 907 (Tenn. 1993); Comdata Network, Inc. v. Tennessee

Dept. of Revenue, 852 S.W.2d 223 (Tenn. 1993).



           A statute must be construed so as to ascertain and give

effect to the intent and purpose of the legislation considering the

statute as a whole and giving words their common and ordinary

meaning.   Crowe v. Ferguson, 814 S.W.2d 721, 723 (Tenn. 1991);

Marion Cty. Bd. of Comm'rs v. Marion Cty. Election Comm'n, 594

S.W.2d 681, 684-85 (Tenn. 1980).       The Court should assume that the

legislature used each word in the statute purposely and that the

use of these words conveyed some intent.      Crowe, 814 S.W.2d at 723;

Anderson Fish & Oyster Co. v. Olds, 197 Tenn. 604, 277 S.W.2d 344,

346   (1955).     Furthermore,   this     Court   may   review   previous

legislation on the subject in an effort to learn the present


                                   3
intention of the legislature.     Id.     In construing statutes, courts

must presume that the legislature has knowledge of its prior

enactments and knows the state of the law at the time it passes

legislation.   Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995).



           Finally,   penal   statutes     are   construed    strictly    and

against the State.      State v. Bobo, 727 S.W.2d 945, 952 (Tenn.

1987).   As a general rule of statutory construction, any ambiguity

in a criminal statute is construed in favor of the defendant.

State v. Blouvett, 904 S.W.2d 111, 113 (Tenn. 1995)(citing Key v.

State, 563 S.W.2d 184, 188 (Tenn. 1978)).



            With these caveats in mind, we turn to the statute at

issue.    Tennessee    Code   Annotated    §   39-16-502(a)    provides    in

pertinent part:


                  It is unlawful for any person to:

                (1) Report to a law enforcement
                officer an offense or incident
                within the officer’s concern:

                  . . . .

                        (C) Knowing the information
                  relating to the offense is false
                  . . .



           At the outset, we note that the previous version of this

statute was worded more broadly:


                  (a) A person commits the offense of
                  false reporting to authorities if
                  he:

                  . . . .


                                    4
                     (3) Makes a report, purposely causes
                     the transmission of a report or
                     furnishes    information   to    law
                     enforcement authorities concerning a
                     crime or other incident within their
                     official concern if he knows that he
                     has no such information relating to
                     such crime or incident or he knows
                     that   the   information  is   false
                     . . . .


Tenn. Code Ann. § 39-5-524 (1983)(emphasis added).                 Thus, it is

reasonable      to    conclude     that    in   amending    the   statute,   the

legislature intended to narrow the situations in which it applies.



              We have also carefully reviewed the legislature’s use of

the term “report” in other sections of the criminal code.                    The

legislature has consistently used the term “report” in contexts

where the individual initiates the provision of the information,

not in contexts where an individual is responding to an inquiry.

See   Tenn.    Code    Ann.   §    39-13-525(b)(Supp.      1996)(“the   district

attorney general shall conduct a criminal history check . . . .

[and] report the results of such criminal history check to the

court . . . .”); § 39-14-209 (1991)(upon receiving information that

a horse is footsore, the manager of the horse show “shall report

the same in writing to the district attorney general . . . .”); §§

39-14-902(2)(C)(i) & -903(c)(2)(A)(Supp. 1996)(money laundering

statute   does       not   apply    to    suspicious   transactions     “whether

reportable or not under any state or federal currency transaction

reporting or recording requirements, where:                  [s]uch person or

corporation reports such suspicious transaction . . . .”); § 39-14-

909 (Supp. 1996)(“[t]he reporting of a financial transaction by a

corporation or other business entity to a regulator shall not


                                           5
create a cause of action . . . .”); § 39-15-203 (1991)(a doctor

performing an abortion “shall make a report to the commissioner of

health . . . .”); § 39-16-606 (1991)(whenever a person escapes from

custody, the appropriate warden “shall immediately report the

escape . . . .”); § 39-17-1312 (Supp. 1996)(“It is an offense if

the parent . . . knows that such minor is in illegal possession of

a firearm . . . [and] fails to report it to the appropriate school

or law enforcement officials.”).       In contrast, the perjury statute

uses the phrase “make a false statement,” which is obviously

intended to include responsive statements.       See Tenn. Code Ann. §

39-16-701 et seq. (1991).   Thus, while “report” can, according to

some of its dictionary definitions, be used in the context of a

response to a question, the legislature has not utilized the term

in this manner.    Arguably, the statute is ambiguous.      We believe

the better course is to construe “report” as used in Tenn. Code

Ann. § 39-16-502 consistent with its use in the other sections of

the criminal code.     As a criminal statute, § 39-16-502 is also

subject to strict construction in favor of the defendant.



          We also note that the legislature defined the term

“statement” in the subsection immediately preceding the subsection

at issue here.    Had the legislature intended § 39-16-502 to apply

to responsive statements, the obvious term to use would have been

“statement.”   The court in People v. Smith, 281 P.2d 103 131 Cal.

App.2d Supp. 889(Cal. App. Dep’t Super. Ct. 1955) reached a similar

conclusion:


                 we have concluded that if it had
                 been the intent of the City Council
                 to proscribe conduct such as that

                                   6
                 disclosed by the evidence here, it
                 would     have     used    language
                 substantially different from that
                 which it did. It seems reasonable
                 that in such circumstances it would
                 have provided that it should be
                 unlawful for any person to willfully
                 make a false statement to a police
                 officer for the purpose stated--
                 rather than using the word “report,”
                 which in its context, at least,
                 seems to connote a statement written
                 or oral made upon the initiative of
                 one who resorts to the police
                 department or a member thereof for
                 the specific purpose of having some
                 action taken with respect thereto
                 rather than by way of response to
                 questions by an officer . . . .


Id. at 104.



          We hold today that “report” as used in Tenn. Code Ann.

§ 39-16-502 applies to a written or oral statement initiated by a

person.   In this context, “report” does not apply to a person’s

response to an inquiry by a law enforcement officer.



          It results that the judgment of the Court of Criminal

Appeals is affirmed.     Costs are taxed to the State, for which

execution may issue if necessary.




                                ____________________________________
                                ADOLPHO A. BIRCH, JR., Justice


CONCUR:
Anderson, C.J.
Reid, J.

DISSENT:
Drowota, Holder, JJ.

                                  7
                IN THE SUPREME COURT OF TENNESSEE
                            AT KNOXVILLE
                       (HEARD AT MORRISTOWN)               FILED
                                                            October 6, 1997
STATE OF TENNESSEE,                      )     FOR PUBLICATION
                                                           Cecil Crowson, Jr.
                                         )                 Appellate C ourt Clerk
            Appellant,                   )     Sullivan County
                                         )
v.                                       )     Hon. R. Jerry Beck,
                                         )     Judge
BETTY D. LEVANDOWSKI,              )
                                         )     No.    03S01-9611-CR-
00116
            Appellee                     )



                         DISSENTING OPINION

            I dissent from the majority decision interpreting Tenn. Code

Ann § 39-16-502(a)(1) (1991 Repl.) as applying only to false statements

initiated by an individual to the exclusion of false statements given in

response to inquiries by law enforcement officials. For the reasons

explained below, the majority’s interpretation is contrary to the plain

language of the statute. Therefore, I would reverse the Court of Criminal

Appeals’ decision and affirm the defendant’s conviction for making a

false report.



                    STATUTORY INTERPRETATION
            The most basic principle of statutory construction is to

ascertain and give effect to legislative intent. Owens v. State, 908

S.W.2d 923, 926 (Tenn. 1995). Legislative intent is to be ascertained

whenever possible from the natural and ordinary meaning of the

language used, without forced or subtle construction that would limit or

extend the meaning of the language. Carson Creek Vacation Resorts,

Inc. v. State, Dept. of Revenue, 865 S.W.2d 1, 2 (Tenn. 1993) (emphasis

added). Courts must presume that the General Assembly intended that

every word used in a statute would have a purpose and convey a

meaning. Cohen v. Cohen, 937 S.W.2d 823, 827 (Tenn. 1996). The

presence of words of limitation in one part of a statute indicates that the

absence of such words from other parts of the same statute is an

intentional legislative choice. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

1992). If the legislative intent is expressed in a manner devoid of

contradiction and ambiguity, there is no room for interpretation or

constructions, and courts are not at liberty, on consideration of policy or

hardship to depart from the words of the statute. Carson Creek Vacation

Resorts, Inc., 865 S.W.2d at 2. Where the language contained within the

four corners of a statute is plain, clear, and unambiguous, the duty of the

courts is simple and obvious, “to say sic lex scripta, and obey it.” Id.,

quoting Miller v. Childress, 21 Tenn. (2 Hum.) 319, 321-22 (1841).




                                    -9-
           The language contained within the four corners of Tenn.

Code Ann. § 39-16-502 (a) is not ambiguous. The statute provides as

follows:

           (a) It is unlawful for any person to:

           (1) Report to a law enforcement officer an
           offense or incident within the officer’s concern:

                 (A) Knowing the offense or incident
                 did not occur;

                 (B) Knowing the person reporting
                 has no information relating to the
                 offense or incident; or

                 (C) Knowing the information relating
                 to the offense is false; or

           (2) Intentionally initiate or circulate a report of
           a past, present, or impending bombing, fire or
           other emergency, knowing that the report is false
           or baseless and knowing:

                 (A) It will cause action of any sort by
                 an official or volunteer agency
                 organized to deal with those
                 emergencies;

                 (B) It will place a person in fear of
                 imminent serious bodily injury; or

                 (C) It will prevent or interrupt the
                 occupation of any building, place of
                 assembly, form of conveyance, or
                 any other place to which the public
                 has access.


(Emphasis added.) The natural and ordinary meaning of the word

“report,” includes statements given in response to inquiries by law


                                  -10-
enforcement officials. To “report” simply means “[t]o give an account of,

to relate, to tell, to convey or disseminate information.” Black’s Law

Dictionary, 1300 (6th ed. 1990). The majority’s interpretation is an

unwarranted limitation of the meaning of the language of the statute, in

contravention of this Court’s duty.



            Where the language of a statute is free from ambiguity, resort

to extrinsic aids to determine legislative intent is not appropriate.

Roseman v. Roseman, 890 S.W.2d 27, 29 (Tenn. 1994); Carson Creek

Vacation Resorts, Inc., 865 S.W.2d at 2. Because the language of the

statute at issue in this case is clear, the majority’s reliance upon extrinsic

aids to determine legislative intent is inappropriate and unnecessary.

However, even if statutory language is ambiguous, when discerning

legislative intent it is only appropriate to consider statutes “in pari

materia”-- those relating to the same subject or having a common

purpose. Owens, 908 S.W.2d at 926. In this case, the majority relies

upon the definition of the term “report” in other unrelated statutes to

support its interpretation.    Conspicuously absent from the majority

decision is a discussion of the other words used in the remainder of the

statute at issue which expressly limit application of Tenn. Code Ann. §

39-16-502(a)(2) (1991 Repl.) to false reports “intentionally initiate[d] or

circulate[d]” by individuals. It is clear that, had the General Assembly

intended to limit application of Tenn. Code Ann. § 39-16-502(a)(1) to
                                      -11-
declarant-initiated false reports, appropriate language was available to

do so. Therefore, the absence of an express limitation from subsection

(a)(1) militates against the interpretation adopted by the majority and

indicates that the General Assembly deliberately chose to give that

subsection a broad application. Harkins, 811 S.W.2d at 82.



            Finally, the important element to consider in determining

whether a false report has been made is whether the person gave the

report knowing (A) the offense or incident did not occur; (B) the person

reporting has no information relating to the offense or incident; or (C) the

information relating to the offense is false. Tenn. Code Ann. § 39-16-502

(a)(1) (1991 Repl.). By focusing upon the party initiating the contact

during which the false statement is given, the majority exalts form over

substance. See State v. Fenster, 199 A.2d 177 (Conn. Cir. Ct. 1962) (so

characterizing the definition of “report” adopted in People v. Smith, 281

P.2d 103 (Cal. App. Dep’t Super. Ct. 1955), upon which the majority in

this case rely.)



            I would hold, as Judge Jerry Smith held in his dissent in the

Court of Criminal Appeals, that “report,” as used in Tenn. Code Ann. §

39-16-502 (1991 Repl.), includes statements given in response to

inquiries by law enforcement officials. Therefore, I would reverse the

Court of Criminal Appeals’ decision and affirm the defendant’s conviction
                                    -12-
of making a false report.   I respectfully dissent from the majority’s

decision.




                                 -13-
           I am authorized to state that Justice Holder concurs in this
Dissenting Opinion.



________________________________
                                        Frank F. Drowota, III,
                                        Justice




                                 -14-