State v. Dugan

793 N.E.2d 1034, 2003 Ind. LEXIS 692, 2003 WL 21999434
CourtIndiana Supreme Court
DecidedAugust 22, 2003
Docket49S02-0212-CR-671
StatusPublished
Cited by56 cases

This text of 793 N.E.2d 1034 (State v. Dugan) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dugan, 793 N.E.2d 1034, 2003 Ind. LEXIS 692, 2003 WL 21999434 (Ind. 2003).

Opinions

SHEPARD, Chief Justice.

The State indicted officer John C. Du-gan, Jr. of the Indiana State Excise Police, for official misconduct. It alleged that he accepted gratuities from the owner of two companies to which the Aleoholic Beverage Commission had issued permits to sell alcoholic beverages. Was it proper for the State to charge Dugan with official misconduct? We conclude it was.

Facts and Procedural History

The charging instrument alleged that Dugan "accompanied his supervisor, the Superintendent of the Indiana State Excise Police, for the purposes of socializing, drinking alcoholic beverages, dining and engaging in sexual activity while on duty." (App. at 12.) Count I charged Dugan with ghost employment, a class D felony. Counts II and III charged Dugan with official misconduct, a class A misdemeanor. The official misconduct charges alleged that on February 8 and 12, 1999, Dugan violated Ind.Code § 7.1-5-5-2 for having accepted gratuities from Bradley Hirst, sole owner of two companies that the Indiana State Alcoholic Beverage Commission ("ABC") issued permits to sell alcoholic beverages.1

[1036]*1036Dugan moved to dismiss the entire in-diectment on procedural grounds. He moved to dismiss Counts II and III on substantive grounds, contending that because Hirst had already received the permit from the ABC, the statute was inapplicable since it prohibits receiving gratuities from someone "applying for or receiving a permit," not a holder of a permit.

The trial court declined to dismiss the entire indictment, but granted Dugan's motion to dismiss Counts II and III. It subsequently granted the State's motion to dismiss Count I.

The State appealed. The Court of Appeals affirmed the trial court's dismissal of the official misconduct counts, on a rationale different than that expressed by the trial court. State v. Dugan, 769 N.E.2d 235, 238 (Ind.Ct.App.2002). It did not address whether Ind.Code § 7.1-5-5-2 as written applies to holders of permits; rather it upheld the trial court's decision on grounds that "the Official Misconduct statute was not the appropriate statute with which to charge Dugan" because there was another statute applicable. Id.

We grant transfer to determine: 1) whether Ind.Code § 7.1-5-5-2 is applicable to "holders" of a permit and 2) whether the State has discretion in charging a defendant with any applicable statute where multiple statutes are applicable.

I. Does "Receiving" Mean "Holding"?

The State charged Dugan with acting in contravention to Ind.Code § 7.1-5-5-2, which makes it unlawful for a commissioner, officer or employee of the commission, or member of a local board, to receive a gratuity from a person "applying for or receiving" a permit.2 Everyone agrees that "applying for" refers to applicants. It is undisputed that Hirst was not applying for a permit when the alleged violation occurred. What is at issue here is the term "receiving."

While Dugan claims he did not violate § 7.1-5-5-2 because it does not apply to someone already in possession of a permit, the State contends that "receiving" a permit is an ongoing process-that the per-mittee's holding of a permit is a continuing action of "receiving" a permit. Essentially, the State argues that the term "receiving" includes permit holders.

The trial court concluded that the language in Ind.Code § 7.1-5-5-2 was unclear, and that if the legislature intended to criminalize the conduct described in Counts II and III involving a person holding a permit, they could have so stated. Put another way, it agreed with Dugan that § 7.1-5-5-2 does not prohibit such officials from receiving gratuities from persons who already hold permits.

The primary goal in statutory construction is to determine, give effect to, and implement the intent of the legislature. Collier v. Collier, 702 N.E.2d 351 (Ind.1998). are to be given their plain, ordinary, and usual meaning, unless a contrary purpose is shown by the statute itself." Cox v. Worker's Comp. Bd., 675 N.E.2d 1053, 1057 (Ind.1996). It is just as important to recognize what the statute does not say as it is to recognize what it does say. Clifft v. Indiana Dept. of State Revenue, 660 N.E.2d 310 (Ind.1995). Because courts must give deference to such intent whenever possible, "courts must consider the goals of the statute and the [1037]*1037reasons and policy underlying its enactment." MDM Inv. v. City of Carmel, 740 N.E.2d 929, 934 (Ind.Ct.App.2000).

The legislature itself has articulated the purposes of Title 7.1: to protect the economic welfare, health, peace and morals of the people and to regulate and limit the manufacture, sale, possession and use of alcohol and aleoholic beverages. Ind.Code Ann. § 7.1-l1-l1-1(a), (b) (West 1982). It is clear that these purposes apply equally, if not more so, to holders of permits as to those applying for a permit.

To accomplish such purposes, the ABC issues permits which entitle the permit holder to deal in alcoholic beverages. See Ind.Code Ann. §§ 7.1-38-1-1, 7.1-1-38-29 (West 1982). This entitlement, however, is hardly unlimited. The state excise police officers are ABC employees charged with the duty and power to enforee the provisions of Title 7.1. Ind.Code Ann. §§ 7.1-2-2-9 (West 1982 & Supp.2002). As such, they can revoke or suspend a permit for a violation of one of the provisions. Ind. Code Ann. § 7.1-83-23-2 (West 1982). There are also statutory prohibitions imposed upon ABC employees so as to maintain the integrity of the commission. One such prohibition is that contained in Ind. Code § 7.1-5-5-2 (unlawful to receive gratuity, commission, or profit of any kind from a person applying for or receiving a permit under this title).

Dugan points out that other provisions of Title 7.1, particularly the section immediately preceding the one at issue, Ind. Code § 7.1-5-5-1

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Bluebook (online)
793 N.E.2d 1034, 2003 Ind. LEXIS 692, 2003 WL 21999434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dugan-ind-2003.