State v. Moore , 2009 Ind. App. LEXIS 2054 ( 2009 )

OPINION

BAKER, Chief Judge.

Appellant-defendant State of Indiana appeals the order entered by the trial court dismissing the charge of Escape,¹ a class C felony, that the State had brought against appellees-defendants Misty Moore, et al. (collectively, the Inmates). Moore and five other inmates at the Greene County Jail had left their assigned cells during the night to spend time with each other in restricted areas. The State argues that the trial court erred by finding that the facts as alleged by the State did not constitute the crime of escape. Finding no error, we affirm.

FACTS

Beginning in September 2008, the three female Inmates allegedly removed ceiling tiles in their cells and climbed through the ceiling into the male cell block, usually after midnight.² Upon arriving in the male cell block, the Inmates would hang out, play cards, and have sex with each other. The three female Inmates went to the male cell block almost every night, and the three male Inmates went to the female block through the ceiling at least once.

On November 14, 2008, the State charged the Inmates with eclass C felony escape. The Inmates each filed respective motions to dismiss the charge beginning in December 2008. The trial court held a hearing on the first motion to dismiss and granted it on January 21, 2009. It granted all of the other Inmates' motions to dismiss in the subsequent weeks. The State now appeals.

DISCUSSION AND DECISION

When reviewing the grant of a motion to dismiss an information, we review the trial court's ruling for an abuse of discretion. Zitlaw v. State, 880 N.E.2d 724, 728-29 (Ind.Ct.App.2008), trans. denied. To the extent that this case rests upon statutory interpretation, however, our review is de novo. Ashley v. State, 757 N.E.2d 1037, 1039 (Ind.Ct.App.2001). Penal statutes should be construed strictly against the State; thus, any ambiguities should be resolved in favor of the accused. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005). At the same time, however, statutes should not be narrowed so much as to exclude cases they would fairly cover. Id. Also, we assume that the language in a statute was used intentionally and that every word should be given effect and meaning. Id. Statutes concerning the same subject matter must be read together to harmonize and give effect to each. Id..

A person commits class C felony escape when she "intentionally flees from lawful detention...." I.C. § 35-44-3-5(a). "Lawful detention" is statutorily defined as:

(1) arrest;

(2) custody following surrender in leu of arrest;

(3) detention in a penal facility;

(4) detention in a facility for custody of persons alleged or found to be delinquent children;

(5) detention under a law authorizing civil commitment in lieu of eriminal proceedings or authorizing such detention while criminal proceedings are held in abeyance;

(6) detention for extradition or deportation;

(7) placement in a community corrections program's residential facility;

(8) electronic monitoring;

(9) custody for purposes incident to any of the above including transportation, medical diagnosis or treatment, court appearances, work, or reere-ation; or

(10) any other detention for law enforcement purposes.

Ind.Code § 35-41-1-18.

For our purposes herein, the only applicable definition of "lawful detention" is "detention in a penal I.C. § 35-41-1-18(a)(8). Thus, to prove that the Inmates committed escape, the State was required to establish that they intentionally fled from detention in a penal facility. Id.; 1.C. § 85-44-3-5(a).

The facts as alleged by the State establish that the Inmates snuck through the ceiling into restricted areas in the middle of the night. That is almost certainly a violation of Jail rules. These alleged facts do not, however, establish that the Inmates were fleeing from the Jail, attempting to flee from the Jail, or had any intention of attempting to flee from the Jail. The Sheriff's Department-or Department of Correction, for inmates housed in prisons-certainly has the authority to punish inmates for rule violations. For example, the Sheriff's Department here could have deprived the Inmates of good time credit. A rule violation does not necessarily establish that a crime was committed, however, and here, the State was unable to meet its burden.

The State directs our attention to a number of cases from other jurisdictions in support of its arguments. But most of those cases are distinguishable from the facts herein, inasmuch as the defendants in those were apprehended in the midst of an escape from the facilities in which they were confined. State v. Sugden, 143 Wis.2d 728, 422 N.W.2d 624 (1988) (inmates committed escape where they overpowered guards and made it past one fence before being subdued inside the see-ond perimeter fence); State v. Padilla, 113 P.3d 1260 (Colo.Ct.App.2005) (inmate committed eseape where he broke out of a locked building and was apprehended when he became entangled in the barbed wire fence at the facility's perimeter) Crowder v. State, 812 S.W.2d 63 (Tx.App.-Houston [14th Dist.] 1991) (inmate committed escape where he had stuffed his bed with books and clothing to make it appear occupied and was found hiding under some construction material in a restricted area and had in his possession a pair of shorts that had been dyed black); see also Huffman v. State, 659 N.E.2d 214, 215 (Ind.Ct.App.1996) (boy in the custody of the Boys' School committed escape where he broke out of his cottage and was found outside, later admitting that he had intended to leave the Boys' School property).

Cases from other jurisdictions that have fact patterns more analogous to the one herein have reached the same conclusion as the trial court did here-although rules may have been broken, no crime was committed. See Louisiana v. Liggett, 363 So.2d 1184 (La.1978) (inmate violated disciplinary rules but did not commit escape where he failed to report to work and was discovered reading a book in an area where he was not supposed to be); State v. Davis, 271 N.W.2d 693 (Iowa 1978) (inmate violated prison rules but did not commit escape where he put a dummy in his bed, left his cell at an unauthorized time, and was found drinking alcohol in the prison library); State v. Buck, 724 S.W.2d 574 (Mo.Ct.App.1986) (inmate committed sexual assault but not escape when he broke through the wall between his cell and another inmate's, raping the other inmate after arriving in her cell).

Under these cireumstances, we can only conclude that where, as here, inmates have no intent or plan to flee from detention in the penal facility in which they are confined, they cannot be guilty of the erime of escape when they merely enter restricted areas of the facility without permission. They may be in violation of facility rules, and can be punished accordingly, but have not committed a crime. We acknowledge that the relevant statutes could be drafted more artfully and explicitly, but given the well-established rules that we construe penal statutes strictly against the State and that ambiguities should be resolved in favor of the accused, Meredith v. State, 906 N.E.2d 867, 872 (Ind.2009), close calls such as this one must be resolved in the defendants' favor. Therefore, we find that the trial court did not abuse its discretion by dismissing the charges herein.

The judgment of the trial court is affirmed.

RILEY, J., coneurs. FRIEDLANDER, J., dissents with opinion.

1 , Ind.Code § 35-44-3-5(a).

2 . Because of the procedural posture of this case, there is no evidence from which to assert "facts." Thus, the facts herein are based upon the allegations contained in the probable cause affidavits.