Kibbey v. State

• Decision Date: 22 August 2000
• Docket Number: No. 49A02-0003-CR-155.,49A02-0003-CR-155.
• Citation: 733 N.E.2d 991
• Parties: Cherryl KIBBEY and Ronald Kibbey, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

733 N.E.2d 991

Cherryl KIBBEY and Ronald Kibbey, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0003-CR-155.

Court of Appeals of Indiana.

August 22, 2000.

Kevin P. McGoff, Alicia A. Gooden, Kiefer & McGoff, Indianapolis, Indiana, Attorneys for Appellants.

Karen M. Freeman-Wilson, Attorney General of Indiana, Thomas D. Perkins, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

RILEY, Judge

STATEMENT OF THE CASE

In this interlocutory appeal,¹ Defendants-Appellants Ronald E. Kibbey (Ronald) and Cherryl A. Kibbey (Cherryl) (collectively "Kibbeys") challenge the trial court's denial in part of their motion to dismiss all charges.

We affirm in part and reverse in part.

ISSUES

We restate the issues as follows:

1. Whether the trial court properly dismissed the Kibbeys' four counts of theft, under I.C. XX-XX-X-X, as Class D felonies, because the State should have charged the defendants under the more specific statute for failure to remit sales tax, I.C. 6-2.5-9-3, as a Class D felony.

2. Whether the trial court erred by not dismissing the Kibbeys four counts of perjury under I.C. XX-XX-X-X, as a Class D felony, because the State should have charged the defendants under the more specific statute, I.C. 6-2.5-9-1, as a Class B misdemeanor.

3. Whether the trial court properly determined that the four counts of failure to remit sales tax should not be dismissed although the Indiana Department of Revenue failed to provide notice pursuant to I.C. 6-8.1-5-1.

FACTS AND PROCEDURAL HISTORY

This case arises out of an investigation by the Indiana Department of Revenue (Department) into one of the Kibbeys' two businesses: Secrets of Indy, Inc. (Secrets). Secrets provided food and drink to its customers, as well as rooms, cubicles or booths for adult relaxation and entertainment. Secrets did not pay any sales taxes for its items nor was it licensed as a retail merchant.

The facts relevant to this appeal reveal that on February 16, 1999, the State charged² the Kibbeys with: corrupt business influence, a Class C felony; four counts of theft, a Class D felony; four counts of failure to remit sales tax, a Class D felony; four counts of perjury, a Class D felony; and a civil rights violation, a Class B misdemeanor. On August 20, 1999, the Kibbeys filed a motion to dismiss the Information. The trial court dismissed the corrupt business influence and theft charges, but did not dismiss the failure to remit sales tax, perjury, and civil rights violation charges. The trial court's judgment reads:

1. If two statutes present an irreconcilable conflict, then the more detailed statute pertaining to the same subject [sic]. Campbell v. State 1999 WL 437228, 3 (Ind.Ct.App.1999).

2. The legislature is presumed to have existing statutes in mind when it creates new law, but if two statutes cannot be harmonized and one deals with subject in detailed manner and [sic] other in general manner the detailed statute supersedes the general statute. Freeman v. State 658 N.E.2d 68 (Ind. Supreme Court 1995).

3. Counts II, III, IV, and V charge the Kibbey [sic] with [t]heft, a Class D Felony, under I.C. XX-XX-X-X; however the more specific statute that penalizes the activity of exerting unauthorized control over sales Tax Trust Fund monies is I.C. 6-2.5-9.3, failure to Remit Sales Tax. The more specific statute shall apply, therefore counts II, III, IV and V should be dismissed.

4. In Count I, the Kibbeys are charged with Corrupt Business Influence, a Class C Felony wherein the State alleges the activity of "Theft", the same conduct as in Counts II, III, IV, and V; because Counts II-V are dismissed herein count I shall also be dismissed.

5. The State has the authority and discretion to charge the defendants with failure to Remit Sales, Tax Perjury and Civil Rights Violations.

6. IT IS THEREFORE ORDERED & ADJUDICATED THAT COUNT I, II, III, IV, AND V shall be dismissed; without prejudice; and the Motion to Dismiss counts VI, VII, VIII, IX, X, XI, XIII is hereby DENIED.

Record at 238-39.

With regard to the sales tax counts, the Record reveals that the Kibbeys knew of the duty to collect and remit sales tax monies to the State of Indiana. The Kibbeys, however, never received notice from the Department about failing to pay their sales tax. It appears that because the Kibbeys were not registered with the Department, they did not receive documentation that they had a sixty (60) day period to reply and contest the amount due. The Kibbeys now appeal.

DISCUSSION AND DECISION

Although the Kibbeys agree that the trial court correctly dismissed the theft counts, they contend that the perjury counts should have also been dismissed. They employ the trial court reasoning, which led it to dispose of the theft counts because a more detailed statute covers the same subject matter. The Kibbeys also argue that the trial court erred by not dismissing the four counts of failure to remit sales tax because the Department failed to provide the notice that they must pay. We disagree.

We first address whether the theft and perjury counts should have been dismissed, followed by whether failure to receive notice by the Department constitutes sufficient grounds to dismiss four counts of violating the sales tax statute.

I. Standard of Review

The issues before us today are questions of law. "When the issue on appeal is a pure question of law, the court should review the matter de novo." State v. Moss-Dwyer, 686 N.E.2d 109, 110 (Ind. 1997); see also Brown v. State, 653 N.E.2d 77 (Ind.1995)

; MacLeod v. Guardianship of Hunter, 671 N.E.2d 177 (Ind.Ct.App. 1996). When reviewing a matter de novo an appellate court owes no deference to the trial court's legal conclusions. See State v. J.D., 701 N.E.2d 908, 909 (Ind.Ct. App.1998).

II. Irreconcilable Conflicts Between Statutes

The issue we raise sua sponte involves the trial court's dismissal of the theft counts. The Kibbeys go to great lengths discussing the dismissal of the theft counts in their brief despite prevailing on that issue at trial. The thrust of their argument is that they have been charged with violating general statutes when more detailed and specific statutes apply. After they attempt to demonstrate the propriety of the trial court's judgment on the theft issue, they then urge this court to apply the same reasoning to dismiss the perjury counts. Both the Kibbeys' argument and the trial court's judgment depend solely on the reasoning of one case, which is State v. Wynne, 699 N.E.2d 717 (Ind.Ct.App.1998), trans. denied. There, we held that a defendant was improperly charged under a forgery statute and should have been charged under the more specific and later enacted identification card statute. Id. at 718. The Kibbeys and the trial court mistakenly infer from this holding that a prosecutor does not have discretion to choose under which of two existing statutes a defendant will be charged. We reverse the trial court's decision to dismiss the theft counts and affirm its judgment regarding the perjury counts.

a. Theft and Remit Sales Tax statutes

The Kibbeys contend that the "Theft; receiving stolen property"³ and "Personal liability of holding of taxes in trust; failure to collect or remit; offense"⁴ statutes address the same subject matter, and cannot be harmonized. They also contend that by filing charges under both the theft and sales tax statutes, the State has used the same conduct to constitute two offenses. The Kibbeys thus conclude they were not properly charged and the counts in question should be dismissed.

We begin with the well-established proposition that when two criminal statutes "overlap," or more than one statute appears to define the acts of a defendant, "`the Government may prosecute under either so long as it does not discriminate against any class of defendants. . . . Whether to prosecute and what charges to file or bring . . . are decisions that generally rest in the prosecutor's discretion.'" (Citations omitted). Comer v. State, 428 N.E.2d 48, 54 (Ind.Ct. App.1981), trans. denied, (quoting United States v. Batchelder (1979) 442 U.S. 114, 123-24, 99 S.Ct. 2198, 2203, 60 L.Ed.2d 755). See also Beech v. State, 162 Ind. App. 287, 319 N.E.2d 678, 683 (1974)

(holding that the State may charge under the less specific general theft statutes punishable as a felony instead of the more specific welfare fraud statute punishable as a misdemeanor); Arnold v. State, 162 Ind.App. 402, 319 N.E.2d 697, 700 (1974),

reh'g denied, (holding that Arnold was properly charged with third degree arson for setting fire to an automobile despite his contention that he should have been charged with fourth degree arson because it specifically includes the word "automobile").

In limited circumstances, however, where two statutes necessarily cover (1) the same subject matter and (2) defy harmonization, the State may be required to bring charges under the more specific and more recent statute. See Wynne, 699 N.E.2d at 719

. A court probes two statutes claimed to be in conflict and determines whether they cover the same subject matter by comparing their elements. See Duren v. State, 720 N.E.2d 1198, 1203 (Ind.Ct.App.1999),

trans. denied. When two statutes contain quite different elements, a court must conclude that the "statutes do not address the same subject matter," and there no longer remains a "need to attempt to harmonize the statutes or to determine which statute is more detailed." Id.

On the other hand, if a court determines that two statutes necessarily "address the same subject matter, they are in pari materia and [the court must] strive to harmonize them whenever possible." Id. (citing Wynne, 699 N.E.2d at 719). Harmonization requires a court to construe both statutes and examine the legislative intent closely. Id. "The legislature is presumed to have existing statutes in mind when it adopts a new law." Wynne, 699 N.E.2d at 719. Nevertheless, a...