Avant v. StateAvant v. State
- Reporters:
- , ,
- Before:
- Friedlander
OPINION
FRIEDLANDER, Judge.
In this intеrlocutory appeal from the denial of his motion to dismiss, Mare Avant challenges the constitutionality of
We affirm.
The underlying facts in this cause are brief. At 7:45 p.m. on October 16, 2001, Officer Linda Dulaney was dispatched to the parking lot of a retail establishment in Indianapolis to investigate a reported fight. . When she and Officer Grеg Williams arrived, they saw a fight in progress. One of the combatants was Avant. They observed that Avant was unsteady on his feet, his eyes were bloodshot, his clothes were disheveled, and he was belligerent toward the officers when they approached, The officers arrested Avant for public intoxication. A search incident to the arrest revealed the presence of what they suspected to be a crack pipe in Avant‘s right shoe. The pipe was sent to the police lab, where subsequent tests рroved positive for cocaine residue.
The next day, a criminal information was filed against Avant alleging reckless possession of paraphernalia, a class A misde-megnor under I.C. § On October 26, 2001, Avant filed a motion to dismiss the charge because оf the “faulty statutory construction” of the statutory provision from which it emanates. The court denied the motion. Avant filed a motion asking thé court to certify its ruling for interlocutory appeal, and the trial court granted the motion. This court accepted jurisdiсtion of the case on February 4, 2002. _
. [1-8] We are called upon to determine the constitutionality of .C. § 35-48-4-8.8. This presents a pure question of law, and we conduct a de novo review of the matter. State v. Moss-Dwyer, 686 N.E.2d 109 (Ind. *540 1997). The statute in question here, as is the case with all legislation under constitutional attack, is clothed in a presumption of constitutionality. Cowart v. State, 756 N.E.2d 581 (Ind.Ct.App.2001), trans. denied. We will resolve all reasonable doubts in favor of the statute‘s constitutionality. Id. If a statute can be construed in such a way as to suрport its constitutionality, we must adopt that construction. Id.
Avant contends that IL.C.
The crux of the matter before us has been ably delineated by the parties on appeal. The question essentially is, did the legislature intend, “A person recklessly possesses,” to describe the alleged offender‘s mens rea, or to describe the manner in which the alleged offender possessed the paraphernalia? The first step in interpreting any statute is determining whether the legislature has spoken clearly and unambiguously on the point in question. Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941 (Ind.2001). That task begins with an examination of the language used in the statute. Sales v. State, 723 N.E.2d 416 (Ind.2000). If a statute is clear and unambiguous, we need not apply any rules of construction other than to require that words and phrases be taken in their plain, ordinary, and usual sense. Rheem Mfg. Co. v. Phelps Heating & Air Conditioning, Inc., 746 N.E.2d 941. If, on the other hand, a statute is found to be ambiguous, then we must apply well-established rules of constructiоn to resolve the ambiguity. A statute is ambiguous when “it is susceptible to more than one interpretation.” Id. at 947 (quoting In re Lehman, 690 N.E.2d 696, 702 (Ind.1997)). We conclude that the meaning of “recklessly,” as used in this statute, is ambiguous.
When an ambiguity compels application of the rules of statutory construction, our goal is to determine, give effect to, and implement the intent of the legislature. Sales v. State, 723 N.E.2d 416 (Ind.2000). We examine the statute as a whole *541 and “avoid excessive reliance on a strict literal meaning or the selective reading of individual words.” Id. at 420. We presume that the legislature intended the language employed in the statute to be applied logically and not to bring about an unjust or absurd result. Id. The meaning of a penal statute is strictly construed against the State, but will not be read, so narrowly as to exclude cases it fairly covers. Id.
This court has previously indicated that a criminal statute runs afoul of the Indiana Constitution if it prescribes a sentence for a lesser offense that is greater than a sentence it prescribes elsewhere in the same statute for a greater оffense. See Gullett v. State, 157 Ind.App. 120, 299 N.E.2d 190, 191 (1973) (“our courts have no jurisdiction to punish a lesser-included. offense with greater severity than the higher offense, because to do otherwise would violate Art. 1, § 16 of the Indiana Constitution“) (quoting Landaw v. State, 258 Ind. 67, 279 N.E.2d 230, 231 (1972)). We note as an aside that in Gullett, the court indicated that the appropriate corrective action when a defendant has received a sentence for a lesser offense that is greater than that prescribed for the greater offense, is not to reverse thе conviction and dismiss the charge. Rather, the court indicated that the defendant should receive the sentence prescribed for the greater offense. It stands to reason that the same would be true here if we were to hold that 1.0.
Subsections (a) and (c) differ in two notable respects. First, they differ with respеct to the character of the possession, which we will discuss more fully below. Second, they differ with respect to the nature of the object possessed. We begin our analysis there. Subsection (a) provides that it is a criminal offense to possess an object “that the person intends to use” for taking drugs. Subsection (c), on the other hand, criminalizes possession of an object “that is to be used primarily for” taking drugs. Thus, a person would violate subsection (a) by possessing an object that he intended to use in taking drugs, rеgardless of whether the object would be innocuous in a different context. The person‘s intent-not the intrinsic nature of the object-is the critical element. On the other hand, possession of, for example, a crack pipe would constitute a viоlation of subsection (c), regardless of whether a person then harbored an intent to use it to take drugs. Thus, the difference between subsections (a) and (c) in this respect is that (a) focuses on the possessor‘s intent to use, whereas (c) focuses on thе nature of the object itself.
With this in mind, we proceed to a consideration of the differences in the character of the respective possessions defined in subsections (a) and (c). The ‘character of the possession proscribed in sеction (a) is straightforward: possession with intent to use. The character of the possession proscribed in subsection (c) depends upon the meaning of “recklessly.” Indiana‘s erimi-nal code defines “recklessly” as follows: “A person engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from accept
*542
able standards of conduct.”
This court recently discussed the meaning of “recklessly” in
He challenged the sufficiency of the evidence supporting that conviction. Although this court cited the definition of “reckless” in Indiana‘s culpability statute,
Bocko notes there is no evidence the straw was ever out of his pocket until the police removed it. Neither was there evidence of the harm that might result from his possession of the straw in his pocket, nor that his possession of the straw showed his disregard of the harm that might result from his conduct or that it involved a substantial deviation from acceptable standards of conduct. Rаther, the evidence demonstrated only that Bocko possessed the straw. Mere possession without a showing of recklessness is -a Class A infraction [pursuant to]Ind.Code § 35-48-4-8.8(3) .
Bocko v. State, 769 N.E.2d at 668 (emphasis supplied). The highlighted portion indicates that, consistent with the State‘s argument, the offеnse defined in subsection (a) is a lesser-included offense of the offense defined in subsection (c).
We agree with the foregoing principle that was implied, if not explicitly stated, in Bocko. That is, to obtain a conviction under subsection (c) requires morе than a mere showing of possession such as would be sufficient to obtain a conviction under subsection (a). Our conclusion in this regard is not only consistent with the holding in Bocko, but also avoids an interpretation that would yield a nonsensical result. If the statute werе interpreted as Avant suggests, then a person could be convicted of illegally possessing an object that he did not knowingly possess. The more reasonable interpretation, and the one we adopt, is that under both subsection (a) and (c), the defendant must knowingly possess an object. But to be convicted under subsection (c), the defendant must also possess the object in a reckless manner.
In summary, we hold that “recklessly” in .C.
Judgment affirmed.
NAJAM, J., and SHARPNACK, J., concur.