FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                    ATTORNEYS FOR APPELLEE:

ABHISHEK CHAUDHARY                          GREGORY F. ZOELLER
ANDREW AULT                                 Attorney General of Indiana
Indiana Legal Services
Indianapolis, Indiana                       ELIZABETH ROGERS                FILED
                                            Deputy Attorney General       Jun 21 2012, 8:42 am
                                            Indianapolis, Indiana
                                                                                 CLERK
                                                                               of the supreme court,
                                                                               court of appeals and
                                                                                      tax court




                            IN THE
                  COURT OF APPEALS OF INDIANA

BYRON CHAN,                                 )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )      No. 49A02-1110-MI-1024
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                  APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Theodore M. Sosin, Judge
                      The Honorable Burnett Caudill, Magistrate
                          Cause No. 49D02-1003-MI-12990



                                   June 21, 2012


                            OPINION - FOR PUBLICATION


SHEPARD, Senior Judge
       When a shoplifter steals goods priced at $97, does the $7 in sales tax that would

have been due if he had purchased the items mean that their “retail value” was $104 such

that the forfeiture statutes entitle the State to seize the car the thief used to drive to the

scene of the crime?

                        FACTS AND PROCEDURAL HISTORY

       In February 2010, a loss prevention officer employed by a Menards store in

Indianapolis detained appellant Byron Chan after Chan left the store carrying various

electronics items (like two garage door remotes and an ear bud case) for which he had not

paid. The Menards employee called the Indianapolis Metropolitan Police Department,

whose officers came to the store and took Chan into custody.

       Aside from whatever proceedings may have occurred under the criminal law, the

State filed a complaint seeking forfeiture of the Honda that Chan used in driving to and

expected to use in driving away from the store.

       After a trial on the merits, the court granted the State’s petition. It ordered the

vehicle forfeited for the use of the Indianapolis Metropolitan Police Department and sold

for the benefit of the Marion County Law Enforcement Fund. This appeal followed.

                                           ISSUE

       Indiana’s civil forfeiture statutes provide that a vehicle may be forfeited if it is

used or intended to be used to transport any stolen or converted property, “if the retail or

repurchase value of that property is one hundred dollars ($100) or more.” Ind. Code §

34-24-1-1(a)(1)(B).



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                              DISCUSSION AND DECISION

       Unsurprisingly, the Code does not provide a detailed definition of “retail or

repurchase value” that answers the question at issue.

       Chan argues that the overall legislative scheme for the sales tax treats the tax as an

amount separate from the value of the goods purchased. Section 6-2.5-2-1 provides that

the sales tax is paid “to the retail merchant as a separate added amount to the

consideration in the transaction.”     And, he cites an ordinary definition of the word

“consideration,” which is “[s]omething of value.” Black’s Law Dictionary 300 (7th ed.

1999). He argues that the tax cannot be considered part of the value of the goods

inasmuch as it is calculated on the basis of the value of the goods.

       The State responds by noting that because merchants must collect sales tax from

customers as part of a retail transaction, Ind. Code § 6-2.5-2-1, common understanding

would be that the retail sale encompasses both the price of the goods and the amount of

the tax. “Retail value” for purposes of the forfeiture statute, says the State, is “effectively

the full amount the consumer must pay.” Appellee’s Br. p. 4.

       Forfeitures such as the present case are civil in nature, and the standard of review

for claims of insufficient evidence proceeds under the general civil standard.            The

reviewing court considers the evidence most favorable to the judgment and reverses on

evidentiary grounds only if there is a failure of proof. $100 v. State, 822 N.E.2d 1001

(Ind. Ct. App. 2005), trans. denied. Where the issue turns on a question of law, review is

de novo. Tankersley v. Parkview Hosp., 791 N.E.2d 201 (Ind. 2003). As the parties do



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not dispute any of the facts necessarily found by the trial court, the issue here is solely

one of statutory interpretation.

       Both Chan and the State have advanced entirely respectable interpretations of the

forfeiture statute. One says “retail value” is the price of the goods without tax, and the

other says most people think of value as how much they had to pay when they purchased

the goods.

       In the presence of two competing reasonable interpretations, courts construe

forfeiture statutes much in the same way they construe statutes creating crimes.

Hornbook law says that criminal statutes are construed according to a rule of lenity that

serves to protect against creating a crime by mere construction.          8 Indiana Law

Encyclopedia Criminal Law § 7 (2004). Likewise, forfeitures are not favored in the law,

and statutes authorizing forfeitures are strictly construed. 36 Am. Jur. 2d Forfeitures and

Penalties § 8 (2011); see also Gomez v. Vill. of Pinecrest, 17 So. 3d 322 (Fla. Dist. Ct.

App. 2009), approved, 41 So. 3d 180 (Fla. 2010); People v. Borash, 354 Ill. App. 3d 70,

820 N.E.2d 74 (Ill. App. Ct. 2004), appeal denied.

       Of course, application of this canon leads to the conclusion that “retail or

repurchase value” should be read as meaning the price of the goods without the addition

of the sales tax due on the transaction.

                                      CONCLUSION

       We thus reverse the trial court.

CRONE, J., and BRADFORD, J., concur.



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