Taylor v. State

• Decision Date: 25 March 1996
• Docket Number: No. 82A01-9506-CR-175,82A01-9506-CR-175
• Citation: 663 N.E.2d 213
• Parties: Harvey TAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 213

663 N.E.2d 213

Harvey TAYLOR, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9506-CR-175.

Court of Appeals of Indiana.

March 25, 1996.

Rehearing Denied June 3, 1996.

Appeal from the Vanderburgh Superior Court; The Honorable Scott R. Bowers, Judge, No. 82D02-9303-CF-73.

Timothy R. Dodd, Evansville, for Appellant.

Pamela Carter, Attorney General, Meredith J. Mann, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

ROBERTSON, Judge.

Harvey Taylor appeals his convictions of seven counts of theft, all as class D felonies, and three counts of failure of a public official to deposit public funds, all as class B misdemeanors. Taylor received a total sentence of twelve years, with six years suspended to probation. He claims the evidence is insufficient to support the determination that he is a "public officer" as the statute requires that the evidence is insufficient to support a conviction of theft of a check because, in light of the amendment of the information, the check was post-dated; and that the trial court improperly allowed the State to amend the seven counts of theft after the close of all the evidence. We affirm.

The evidence reveals that the Mayor of Evansville appointed Taylor as the Director of the C.K. Newsome Community Center. Taylor was, in effect, the manager of the center subject to the authority of the Director of the Division of Parks and Recreation of the City of Evansville.

The Community Center generated revenue through the lease and rental of rooms and facilities to various groups and to the general public. The tenants included the Community Action Program of Evansville, the Head Start program, the Carver Community Organization, the Word of Life Church, the World Wide Church of God, a job corps program, and various for-profit and not-for-profit organizations. The tenants leased space at the center in the amount of three dollars per square foot. The Center rented its facilities, such as the atrium, the snack bar, and the library, for occasions such as wedding receptions and other programs. The center also provided governmental organizations with space for various uses and offered recreational programs in subjects such as aerobics, jazzercise, karate, and basketball.

As with all parks department facilities, the City Council appropriated money for the Community Center from the general fund. The money in the general fund came from tax revenues. The Center was approximately fifteen percent self-sufficient when Taylor was the director.

The Executive Director of the Department of Parks and Recreation had his office located in the Community Center. He characterized the Center as follows:

The C.K. Newsome Center is a community facility that's utilized for recreation programs, education, social, cultural, and ... and welfare type programs for the community. It's a facility that's available for the entire community, although it's marketed mostly towards the neighborhood surrounding the facility.

Taylor's convictions of failure of a public officer to deposit public funds deal with Taylor's failure to fully deposit, or deposit at all, checks made payable to the Community Center in the authorized account of the City of Evansville. The theft convictions deal with check deposits Taylor made to accounts other than the authorized account of the City of Evansville.

Taylor first claims he is not a "public officer" within the definition of the term used in Ind.Code 5-13-14-3:

A public officer who knowingly fails to deposit public funds, or knowingly deposits or draws any check or negotiable order of withdrawal against the funds except in the manner prescribed in this article, commits a Class B felony ...

According to I.C. 5-13-4-1, the definitions provided in I.C. 5-13-4 apply throughout I.C. 5-13. Under I.C. 5-13-4-21:

"Public Officer" means any person elected or appointed to any office of the state or any political subdivision. "Public officer" includes an officer of all boards, commissions, departments, institutions, and other bodies established by law to function as a part of the government of the state or political subdivision that are supported wholly or partly by appropriations of money made from the treasury of the state or political subdivision or that are supported wholly or partly by taxes or fees. "Public officer" does not include an officer of an independent body politic and corporate set up as an instrumentality of the state but not constituting a political subdivision.

To determine whether Taylor was a "public officer" within the meaning of the statutes, we first must determine whether the City of Evansville, its Division of Parks and Recreation, or its C.K. Newsome Community Center is a political subdivision under the statutes.

According to I.C. 5-13-4-19, "Political subdivision" has the meaning set forth in I.C. 36-1-2-13, which, in turn, states that the term "means municipal corporation or special taxing district." Under I.C. 36-1-2-1, the definitions listed in I.C. 36-1-2 apply throughout Title 36 of the code and therefore must apply to the definition of a municipal corporation as that term appears in I.C. 36-1-2-13. Thus, we look to I.C. 36-1-2-10, which states:

"Municipal corporation" means unit, school corporation, library district, local housing authority, fire protection district, public transportation corporation, local building authority, local hospital authority or corporation, local airport authority, special service district, or other separate local governmental entity that may sue and be sued. The term does not include a special taxing district.

In the present case, the primary entity involved is the City of Evansville. The State contends that the City is a municipal corporation but cites no authority in support of the proposition. We note that the chapter of the code which defines "municipal corporation" for our purposes here also contains definitions which include the term "city." Under I.C. 36-1-2-3, "City" refers to a consolidated city or other incorporated city of any class, unless the reference is to a school city. Under I.C. 36-1-2-11, "Municipality" means city or town. Neither of these latter definitions provide, however, that a "city" is not also a "municipal corporation" even though it may be a "municipality" and be "consolidated" or "incorporated."

Penal statutes should be interpreted in order to give efficient operation to the expressed intent of the legislature. Barger v. State, 587 N.E.2d 1304, 1306 (Ind.1992) (quoting State v. Bigbee, 260 Ind. 90, 292 N.E.2d 609 (1973)). Penal statutes are strictly construed against the state but are not to be overly narrowed so as to exclude cases the statutes fairly cover. Id. (citing Cape v. State, 272 Ind. 609, 400 N.E.2d 161 (1980)). Criminal statutes should not be wantonly narrowed, limited, or emasculated and rendered ineffective, absurd, or nugatory. If possible, they should be allowed to perform their intended mission as shown by the existing evils intended to be remedied. Id. (quoting Morris v. State, 227 Ind. 630, 88 N.E.2d 328 (1949)).

The definition of municipal corporation includes "other separate local governmental entity that may sue and be sued." I.C. 36-1-2-10. The term "municipal corporation" certainly has a definition broader than that of "city" but nevertheless includes the term "city" within that broad definition.

Taylor, however, worked for the Community Center, which is a subordinate of the City of Evansville. Thus, we must decide whether the Center itself is a municipal corporation and, therefore, also a political subdivision for the purposes of I.C. 5-13-4-21. We note that Indiana has authorized the creation of a municipal corporation for park purposes in the form of a joint county park board. Joint County Park Board v. Stegemoller, 228 Ind. 103, 88 N.E.2d 686 (1949). We conclude that the Community Center qualifies, under I.C. 36-1-2-10, as a municipal corporation because it is a separate local governmental entity that may sue or be sued. Therefore, the Center also is a political subdivision. I.C. 5-13-4-19.

We next must determine whether, under I.C. 5-13-4-21, the Community Center was "established by law to function as a part of the government of the ... political subdivision." Our decision about whether the Center functions "as a part of the government" turns on whether the Center is ultimately engaged in a governmental or...