State v. Moles
| Decision Date | 24 November 1975 |
| Docket Number | 3--374A48,Nos. 3--1273A170-3--1273A172,s. 3--1273A170-3--1273A172 |
| Citation | 166 Ind.App. 632,337 N.E.2d 543 |
| Parties | STATE of Indiana, Appellant, (Plaintiff below), v. Sonia MOLES, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. George PAVLOVICH, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. Anthony CIFALDI, Appellee (Defendant below). STATE of Indiana, Appellant (Plaintiff below), v. Christine WARD, a/k/a Christine Mosley, a/k/a C. Ward, Appellee (Defendant below). |
| Court | Indiana Appellate Court |
Theodore L. Sendak, Atty. Gen. of Indiana, Robert E. Dwyer, Deputy Atty. Gen., Indianapolis, for appellant in all cases.
John Kappos, Hawk, Kautz, P.C., Marlatt, Kappos & Gavit, Merrillville, for Moles, Pavlovich and Cifaldi.
Frederick T. Work, Work & Kimbrough, Gary, for Ward.
The trial court granted Cifaldi, Moles, and Pavlovich's motions to quash the State's indictment which alleged that they had violated the Indiana Adjusted Gross Income Tax Act. The State's appeal from the granting of these motions in three different criminal actions is consolidated. Since State v. Ward presents the same question on appeal, it too is consolidated for the purpose of this opinion. Ind. Rules of Procedure, Appellate Rule 5(B).
Besides the granting of the motion to quash issue above, the State's appeal includes one additional issue: Was the State prejudiced by the denial of its petition for disqualification of the trial judge. A third issue is presented by the cross appeal of Cifaldi, Moles, and Pavlovich: Was the denial of their motion for discharge reversible error?
Our opinion concludes that the trial court committed error when it granted the motions to quash, and we reverse on this issue. We affirm as to the disqualification and discharge issues.
On February 7, 1972, the Marion County Grand Jury returned separate indictments against Anthony Cifaldi, Sonia Moles, George Pavlovich, and Christine Ward. The indictments charged each of them with the offenses of (1) making a false and fraudulent tax return, (2) making a false statement in a tax return, and (3) swearing to or verifying a false and fraudulent statement in a tax return, in violation of IC 1971, 6--3--6--11 (Burns Code Ed.), which provides:
They appeared in Marion Criminal Court and filed motions to quash the indictments, which were overruled. Later, they filed motions to dismiss, alleging among other grounds that the 'alleged offenses as stated in the indictment were not committed in Marion County, Indiana, and the Grand Jury did not have authority to inquire into offenses that were not committed within the jurisdiction of (the Marion Criminal Court).' These motions were accompanied by affidavits stating that the tax returns were prepared in Lake County, Indiana. 1 The Marion Criminal Court did not specifically rule on the motions to dismiss, but entered the following order of transfer on May 5, 1972: 2
'This being a time before verdict or finding and it now appearing to the Court that the defendants, and each of them, are prosecuted in a county not having jurisdiction of the offense, the Court now orders that all of the papers and proceedings be certified and transmitted to the Criminal Court of Lake County, Indiana, and the Court further orders the Sheriff of Marion County to take the defendants, and each of them, and deliver them to the Sheriff of Lake County forthwith, there to await the action of the Criminal Court of Lake County, The Court further orders that the State's witnesses, and each of them, are ordered recognized in the amount of five hundred dollars ($500.00) to appear at the Criminal Court of Lake County that the prosecution may be proceeded with according to law.'
After transfer to the Lake Criminal Court, the State filed petitions seeking disqualification of the judge, which were denied. Cifaldi, Moles, Pavlovich, and Ward filed motions for change of venue from the judge, which were granted. They filed motions to quash the indictments, which were granted. The State filed its motion to correct errors, addressed to the granting of the motions to quash, and the State's motion to correct errors was denied. 3 Cifaldi filed a motion for discharge for delay of trial, which motion was overruled. 4 Cifaldi, Moles, and Pavlovich filed motions to correct errors addressed to the denial of the motion for discharge, which were overruled.
The Issues
The issues presented for our review are:
By the State:
(A) Did the Lake Criminal Court err in granting the motions to quash the indictments? 5
(B) Did the trial judge err in not disqualifying himself?
By Appellees Cifaldi, Moles, and Pavlovich on Cross Appeal:
(D) Did the Lake Criminal Court err in denying appellees' motions for discharge for delay of trial?
The Lake Criminal Court granted the motions to quash the indictments returned by the Marion Grand Jury on the ground that the Marion Grand Jury had no authority to inquire into offenses committed outside its jurisdiction. The State contends that the Lake Criminal Court was in error because the offenses charges were committed in Marion County. The question that must first be answered on appeal is: Where were the alleged offenses of making false tax returns, of making false statements in tax returns, and of swearing to or verifying false statements in tax returns committed?
The State contends that the offenses were committed where the tax returns were filed, that is, in Marion County. It asks us to construe the word 'make' as it is used in IC 1971, 6--3--6--11, supra, to mean 'file.' Cifaldi, Moles, and Pavlovich 6 contend that the offenses were committed where the tax returns were prepared, that is, pursuant to their affidavits, in Lake County. They argue that 'make' means 'prepare,' and that the proscribed act of preparation of a false return or statement in a return is completed before the return is filed. Their affidavits state that their returns were 'prepared and made in Gary, Lake County, Indiana.' However, they do not enlighten us further regarding their feelings about when the act of preparing a return is complete.
Certainly the word 'make' as it is used in section 6--3--6--11 is ambiguous. 'Making' a return, if used in the sense of preparation, could encompass any act from the first compilation of figures to be plugged into a blank tax form, to the placing of the first figure on the blank form, to the placing of the final figure on the filled-in form, to the signing of the filled-in form, to the filing of the filled-in form with the Department of Revenue.
In construing an ambiguous statute, this Court must reasonably interpret the statutory language to discover the legislative intent and goal. Pryor v. State (1973), 260 Ind. 408, 296 N.E.2d 125. A fundamental rule of statutory construction is that, if the statute is susceptible of more than one interpretation, this court may consider the consequences of a particular construction. Economy Oil Corp. v. Indiana Department of State Revenue (1974), Ind.App., 321 N.E.2d 215. It cannot be presumed that the legislature intended an absurd or illogical application of a statute. Pryor, supra.
Statutory crimes are 'often defined, hidden away amid pompous verbosity, in terms of a single verb . . . (which) essential verb usually contains the key to the solution of the question: In what district was the crime committed?' A. M. Dobie, Handbook of Federal Jurisdiction and Procedure § 127, at 511 (1928). In the instant statute, the verbs are 'make' and 'swear to or verify.' However, these essential verbs cannot be properly interpreted unless considered in conjunction with their essential object--the 'tax return.' Thus, the question we must answer is: When does a taxpayer 'make' a tax return?
We conclude that a taxpayer does not 'make' a tax return until the return is filed with the Department of Revenue. In reaching this conclusion, we find no Indiana cases to guide us, 7 but we find helpful the reasoning of federal courts considering the question of venue of offenses in violation of federal tax fraud statutes.
The federal statute most similar to IC 1971, 6--3--6--11, supra, is 26 U.S.C. § 7206(1), which provides that any person who '(w)illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony . . ..' In United States v. Wyman (W.D.Mo.1954), 125 F.Supp. 276, 280--81, the court considered the proper venue of a section 7206(1) offense. The court stated:
The holding of the Wyman court was questioned in ...
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