Austill v. State

745 N.E.2d 859, 2001 Ind. App. LEXIS 502, 2001 WL 275205
CourtIndiana Court of Appeals
DecidedMarch 20, 2001
DocketNo. 87A01-0009-CR-296
StatusPublished
Cited by3 cases

This text of 745 N.E.2d 859 (Austill v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Austill v. State, 745 N.E.2d 859, 2001 Ind. App. LEXIS 502, 2001 WL 275205 (Ind. Ct. App. 2001).

Opinion

OPINION

RILEY, Judge

STATEMENT OF THE CASE

Appellant-Defendant, Kenneth David Austill (Austill), brings this interlocutory appeal from the trial court's order denying his motion to dismiss a charge of possessing a bomb, a Class C felony. Ind.Code § 35-47-5-8(2).

We affirm.

[860]*860ISSUE

Whether the trial court erred by denying Austill's motion to dismiss his charge of possessing a bomb.

FACTS AND PROCEDURAL HISTORY

On January 29, 1998, officers from the Indiana State Police Department, the Drug Enforcement Agency, and the Van-derburgh County Sheriff's Department executed a search warrant at the home of Austill's parents. During the execution of the search warrant, the officers searched inside two vehicles on the property and discovered firearms, ammunition, two electric blasting caps, wire, and a battery operated detonation switch. - Austill was present and admitted that the items inside the vehicles belonged to him.

Austill was taken into custody, and on March 18, 1998, the State charged him with possession of a bomb, a Class C felony, Ind.Code § 85-47-5-8@Q).

On May 3, 2000, Austill filed a Motion to Dismiss the Information, alleging that the facts stated in the Information failed to state an offense under Ind.Code § 85-47-5-8(2). On May 26, 2000, Austill's motion was denied.

On August 1, 2000, Austill filed a Petition to Certify Decision for Interlocutory Appeal. Austill's petition was granted and now he brings this interlocutory appeal.

DISCUSSION AND DECISION

On appeal, Austill argues that, as a matter of law, a push button type, battery operated switch, connected by two (2) wires to two (2) electric blasting caps, does not constitute a bomb. Specifically, Austill contends that because he was not in possession of all the components necessary to constitute an explosive device, namely gunpowder or dynamite, the trial court erred by denying his motion to dismiss his charge for possession of a bomb. We disagree.

Ind.Code § 835-34-1-4(a) states as follows:

The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds:
(1) The indictment or information, or any count thereof, is defective under section 6 of this chapter.
(2) Misjoinder of offenses or parties defendant, or duphcflzy of allegatlon in counts.
(8) The grand jury proceeding was defective.
(4) The indictment or information does not state the offense with sufficient certainty.
(5) The facts stated do not constitute an offense.
(6) The defendant has immunity with respect to the offense charged.
(7) The prosecution is barred by reason of a previous prosecution.
(8) The prosecution is untimely brought.
(9) The defendant has been demed the right to a speedy trial.
(10) There exists some jurisdictional impediment to conviction of the defendant for the offense charged.
| (11) Any other ground that is a basis for dismissal as a matter of law.

It is the State's contention that the trial court properly denied Austill's Motion to Dismiss because he failed to establish, as a matter of law, that the two electric blasting caps, wire, and a battery operated detonation switch do not constitute a bomb. Generally, when a defendant files a motion to dismiss an information, the facts alleged in the information are to be taken as true. State v. D.M.Z., 674 N.E.2d 585, 587 (Ind.Ct.App.1996), trams. [861]*861denied. Furthermore, in Taylor v. State, 677 N.E.2d 56, 67 (Ind.Ct.App.1997), trans. denied, this court held that:

The purpose of an information is to guarantee certain protections to the criminally accused. First, the charging document must set forth the elements of the offense charged in order to apprise the defendant with reasonable certainty of the accusation against him. Second, the offense charged must be described with sufficient particularity to permit a defense of double jeopardy in the event of a subsequent prosecution.

Id. (citations omitted). Finally, in reviewing a motion to dismiss, we apply the same standard as the trial court; that is, assuming the facts alleged in the information to be true, the charge will be dismissed if the facts do not constitute the offense charged. State v. Heltzel, 552 N.E.2d 31, 33 (Ind.1990).

Here, Austill's charging information reads as follows:

The undersigned, being first duly sworn upon his oath, deposes and says that on or about January 29, 1998 at 7022 Gardner Road, Chandler, in Warrick County, State of Indiana, Kenneth David Austill did own or possess a bomb loaded with explosives, to-wit: iwo (2) electric blasting caps with wire and a battery operated switch, contrary to the form of the statutes in such cases made and provided by I.C. 85-47-5-8(2) and against the peace and dignity of the State of Indiana.

(R. 6, emphasis supplied).

At the time the State charged Austill with possession of a bomb, the statute criminalizing the possession of a bomb read as follows:

A person who owns or possess:
a machine gun; or
a bomb loaded with either explosives or dangerous gases;
commits a Class C felony. Ind.Code § 35-47-5-8.

"Bomb," however, was not defined under the 1998 legislation. When construing statutes, we give words and phrases their plain, ordinary, and usual meaning unless some contrary purpose is clearly shown. Smithhart v. State, 591 N.E.2d 149, 151 (Ind.Ct.App.1992). Although the. general rule is that we strictly construe penal statutes against the State, we will not construe them so narrowly as to exclude cases fairly covered. Id. In common understanding, a "bomb" is:

a projectile or other device carrying an explosive charge fused to detonate under certain conditions (as upon impact or through a timing contrivance) and that is hurled (as by a mortar), dropped (as from an aircraft), or merely set into position at a given point (as dynamite) with varying effects (as concussion, or fire-flinging, or the release of gases) depending upon the type used.

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Related

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Bluebook (online)
745 N.E.2d 859, 2001 Ind. App. LEXIS 502, 2001 WL 275205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austill-v-state-indctapp-2001.