State v. King

• Decision Date: 29 January 1987
• Docket Number: No. 49A02-8605-CR-154,49A02-8605-CR-154
• Citation: 502 N.E.2d 1366
• Parties: STATE of Indiana, Appellant (Plaintiff), v. Leigh KING, Shawn Karnes, Celebration Supply Co., Inc., Appellees (Defendants).
• Court: Indiana Appellate Court

Page 1366

502 N.E.2d 1366

STATE of Indiana, Appellant (Plaintiff), v. Leigh KING, Shawn Karnes, Celebration Supply Co., Inc. Appellees (Defendants).

No. 49A02-8605-CR-154.

Court of Appeals of Indiana Second District.

Jan. 29, 1987.

Linley E. Pearson, Atty. Gen., Michael G. Worden, Deputy Atty. Gen., Stephen Goldsmith, Marion County Prosecutor, Steven G. Poore, Deputy Marion County Prosecutor, Office of Atty. Gen., Indianapolis, for appellant.

F. Bradford Johnson, Stephen M. Sherman, Sherman & Johnson, Indianapolis, for appellees.

BUCHANAN, Judge.

CASE SUMMARY

Appellant-plaintiff State of Indiana (State) appeals the trial court's dismissal of charges against defendants Leigh King (King), Shawn Karnes (Karnes), and Celebration Supply Co., Inc. (Celebration) [hereinafter collectively referred to as Supplier], claiming Supplier failed to raise proper grounds to support its motion to dismiss.

We reverse.

FACTS

On June 21, 1985, King was charged with three violations and Karnes was charged with one violation of unlawfully selling at retail fireworks prohibited by Ind.Code 22-11-14-6 (Supp.1986) ¹ and IC 22-11-14-8. ² On July 16, 1985, Celebration was charged with four violations of the same offenses. On July 22, 1985, King and Karnes filed a motion to dismiss with an accompanying affidavit, alleging in part that the charging information and supporting affidavits alleged facts that did not constitute a public offense. An attached, sworn affidavit showed that the employer of King and Karnes, Celebration, qualified as a resident wholesaler, importer or distributor of fireworks, and had been issued a fireworks certificate of compliance by the state fire marshal as required by IC 22-11-14-4. IC 22-11-14-4 is a statutory exception to 22-11-14-8 allowing resident wholesalers, manufacturers, importers, and distributors to sell fireworks not approved for sale in Indiana. ³ On August 6, 1985, the trial court heard arguments on the motion to dismiss and also consolidated the informations filed against Supplier.

On October 2, 1985, the trial court granted leave for Supplier to incorporate a supplemental affidavit as part of its motion to dismiss. The supplemental affidavit was a sworn statement by the president of Celebration, stating that the company was a resident wholesaler, importer and distributor of fireworks, that King and Karnes were employees of the company in June of 1985, and also had attached, sworn statements by the purchasers of the fireworks stating that the fireworks they purchased would be shipped directly out of state. At a second hearing on October 4, 1985, the trial court denied Supplier's motion to dismiss.

On November 26, 1985, Supplier filed a motion to reconsider the ruling on the motion to dismiss. The trial court held a third hearing on December 13, 1985, and granted the motion to reconsider. The court, after argument, granted the motion to dismiss and thereby dismissed the informations against Supplier.

ISSUE

The State raises one issue which we restate as follows:

Did the trial court err in granting Supplier's motion to dismiss the information?

DECISION

PARTIES' CONTENTIONS--The State contends that Supplier cannot rely on facts alleged in the probable cause affidavit to support its motion to dismiss, and also argues that the determination whether the fireworks sale was legal was a question of fact to be decided at trial.

Supplier argues that the affidavits which it presented to the court established a statutory exception to the charged crime, and that a court may properly consider the proferred facts under IC 35-34-1-8 (1982).

CONCLUSION--The trial court erred in granting Supplier's motion to dismiss the information.

As a general rule, the sufficiency of an information is tested by this Court by taking the facts alleged in the information as true. State v. Gillespie (1981), Ind.App., 428 N.E.2d 1338; see also Crouch v. State (1951), 229 Ind. 326, 97 N.E.2d 860; State v. Green (1935), 207 Ind. 583, 194 N.E. 182. The State submits that Supplier relied on facts alleged in the probable cause affidavit in stating that no public offense was charged, since the facts set out in the probable cause affidavit potentially established a defense under IC 22-11-14-4.

The deficiency of a probable cause affidavit is not a ground for dismissal of the information as the probable cause affidavit is not the manner by which a defendant is charged with a crime, but rather serves to justify the pre-trial detention of a defendant based on alleged facts reasonably believed to show the defendant committed the crime. Gilliam v. State (1978), 270 Ind. 71, 383 N.E.2d 297; State v. Palmer (1986), Ind.App., 496 N.E.2d 1337. Supplier, however, does not dispute that it cannot rely on facts in the probable cause affidavit to support its position. Rather, Supplier contends that the trial court may review the facts as presented by Supplier through affidavits and arguments pursuant to IC 35-34-1-8.

IC 35-34-1-8 specifies the manner in which a motion to dismiss is to be made by a defendant, and also specifies when the trial court is permitted to grant the motion without a hearing. That statute provides in part that:

"(a) ....If the [motion to dismiss an information] is expressly or impliedly based upon the existence or occurrence of facts, the motion shall be accompanied by affidavits containing sworn allegations of these facts. The sworn allegations may be based upon personal knowledge of the affiant or upon information and belief, provided that in the latter event the affiant discloses the sources of the information and the grounds for the belief. If the motion is expressly or impliedly based upon the existence of any question of law, the motion shall be accompanied by a memorandum stating specifically the legal question in issue. The defendant may also submit documentary evidence tending to support the allegations of the motion.

(b) The prosecutor may: (1) file with the court an answer denying or admitting any or all of the allegations of the motion; and (2) submit documentary evidence tending to refute the allegations.

(c) After all papers of both parties have been filed, and after all documentary evidence has been submitted, the court shall determine whether ... a hearing is necessary to resolve questions of fact.

....

(f) ... The defendant has the burden of proving by a preponderance of the evidence every fact essential to support the motion."

Supplier is clearly allowed to raise facts and points of law pursuant to IC 35-34-1-8; however, the kinds of factual issues which can be raised by a motion to dismiss are limited.

The purpose of IC 35-34-1-8 would appear to be to establish facts that determine whether, as a matter of law, an offense has properly been charged against a defendant. The facts permitted to be raised under IC 35-34-1-8 typically concern only pre-trial matters. See Bruce v. State (1978), 268 Ind. 180, 375 N.E.2d 1042, cert. denied, 439 U.S. 988, 99 S.Ct. 586, 58 L.Ed.2d 662 (lack of jurisdiction); Defries v. State (1976), 264 Ind. 233, 342 N.E.2d 622 (adequacy of the form of the information); Richardson v. State (1983), Ind.App., 456 N.E.2d 1063 (agreement in plea agreement not to prosecute related offense); Strode v. State (1980), Ind.App., 400 N.E.2d 183 (double jeopardy); Snodgrass v. State (1979), 182 Ind.App. 473, 395 N.E.2d 816, trans. denied (collateral estoppel); Sawyers v. State (1976), 168 Ind.App. 149, 341 N.E.2d 810 (double jeopardy); Hartman v. State (1975), 164 Ind.App. 356, 328 N.E.2d 445 (agreement for immunity in plea agreement).

Furthermore, we must construe the purpose of a statute by viewing it in regard to the surrounding sections of the act. Combs v. Cook (1958), 238 Ind. 392, 151 N.E.2d 144; Detterline v. Bonaventura (1984), Ind.App., 465 N.E.2d 215, trans. denied; Smith v. State ex rel. Medical Licensing Bd. (1984), Ind.App., 459 N.E.2d 401. IC 35-34-1-8 was placed in Article 34, titled Bringing Criminal Charges, which is composed of sections concerning pre-trial matters such as the commencement of an action against a defendant, the correct form of an information, grounds for dismissal of an information, and grand jury proceedings. We conclude IC 35-34-1-8 was purposely placed in this article, and thus only allows those facts to be raised by affidavit which show as a matter of law that a crime has not been charged properly.

In Gillespie, supra, the court reversed the trial court's dismissal of a charge of attempted dealing of a controlled substance when the substance was stipulated by the parties to actually be aspirin. The majority stated that whether the defendant had the culpability to commit the crime as charged was an issue of fact for trial. Id. In his concurring opinion, Judge Staton observed that the type of facts allowed to be raised under IC 35-3.1-1-8 (presently IC 35-34-1-8) is limited to factual questions regarding jurisdiction, the form of the indictment, or facts arising under IC 35-3.1-1-4 (presently IC 35-34-1-4) such as double jeopardy. Id. Questions of fact to be decided at trial or facts constituting a defense are not properly raised by a motion to dismiss. See id.

In this case, Supplier is prematurely attempting to present to the trial court its defense. Although the submitted affidavits by Supplier, on their face, appear to present a statutory exception to IC 22-11-14-8, the determination of whether Supplier has fully complied with IC 22-11-14-4 and established a good defense goes beyond the factual issues which may be decided by a motion to dismiss the information. The State may, under IC 35-34-1-8, refute the facts put forth by a defendant supporting a motion to dismiss, but is not required to do so. At the third hearing, the State argued that it would raise the issue of fraud in the procurement of the purchasers' signatures. Whether Supplier's alleged statutory defense is adequate and whether the State's allegation of fraud will...