State v. King, No. 49A02-8605-CR-154

• Docket Nº: No. 49A02-8605-CR-154
• Citation: 502 N.E.2d 1366
• Case Date: January 29, 1987
• Court: Court of Appeals of Indiana

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.

Page 1367

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

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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

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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...