An-Hung Yao and Yu-Ting Lin v. State of Indiana

ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE

James H. Voyles Gregory F. Zoeller

Tyler D. Helmond Attorney General of Indiana

Voyles Zahn Paul Hogan & Merriman

Indianapolis, Indiana Jodi Kathryn Stein

Deputy Attorney General

Alan D. Burke

Burke Law Office Andrew A. Kobe

Rochester, Indiana Deputy Attorney General

Indianapolis, Indiana

Jeremy N. Gayed

Michael H. Michmerhuizen

Barrett & McNagny LLP

Fort Wayne, Indiana FILED

Sep 13 2012, 8:33 am

R.P. Fisher

Fisher & Ireland

Wabash, Indiana CLERK of the supreme court,

______________________________________________________________________________ court of appeals and

tax court

In the

Indiana Supreme Court

_________________________________

No. 35S02-1112-CR-704

AN-HUNG YAO AND YU-TING LIN,

Appellants-(Defendants below),

v.

STATE OF INDIANA,

Appellee-(Plaintiff below).

_________________________________

Interlocutory Appeal from the Huntington Circuit Court

Nos. 35C01-1001-FC-12

35C01-1001-FC-16

The Honorable Thomas M. Hakes, Judge

_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 35A02-1006-CR-678

_________________________________

September 13, 2012

Rucker, Justice.

Case Summary

Associated with a toy gun business, Defendants were charged with counterfeiting, theft,

and corrupt business influence arising out of their conduct concerning toy semi-automatic

weapons that were look-alikes of real weapons for which a gun manufacturer allegedly owned a

federally protected trademark. Defendants moved to dismiss the charges; the trial court granted

their motion with respect to counterfeiting on grounds that the facts alleged did not constitute an

offense. On interlocutory review the Court of Appeals concluded that all charges should be

dismissed on grounds that Indiana lacked jurisdiction. Disagreeing with our colleagues on this

point, we affirm in part and reverse in part the judgment of the trial court.

Facts and Procedural History

Yu-Ting Lin operates Generation Guns, a Houston, Texas based business, which imports

from Taiwan and sells in this country certain products it labels as “airsoft guns.”1 An-Hung Yao,

vice-president of a bank in Houston, is a friend of Lin’s and has helped her by setting up

bookkeeping and computer systems for Lin’s business, and by attending trade shows with her.

As part of an investigation into potential trademark infringements, firearms manufacturer

Heckler & Koch, Inc. (“H & K”), through a private consulting firm and in cooperation with the

Indiana State Police, ordered airsoft guns from Generation Guns. H & K directed that the toy

guns be shipped to an address in Huntington County, Indiana. Lin, Yao, or both were allegedly

involved in the process of receiving the order, accepting payment, and effecting shipment of the

airsoft guns. On the basis of H & K’s verification that the toys delivered to Huntington County

were replicas of H & K’s real weapons, the Huntington County Prosecutor charged Lin and Yao

with three counts each of Class D felony theft and Class D felony counterfeiting, and one count

each of Class C felony corrupt business influence.

1

“Airsoft” guns are described as toy replicas that look like real guns, but shoot lightweight plastic pellets

instead of metal BBs or live ammunition. See, e.g., State v. Jasso, 273 P.3d 309, 309 n.1 (Or. Ct. App.

2012); People v. Glenn, 814 N.W.2d 686, 688 n.1 (Mich. Ct. App. 2012).

2

Lin and Yao (collectively, the “Defendants”) moved to dismiss all charges against them.

Defendants contended the facts cannot constitute the offense of theft because one cannot exert

unauthorized control over a trademark. Because the corrupt business influence charges were

predicated on the theft counts,2 the Defendants argued for their dismissal on the same basis.

With respect to the charge of counterfeiting the Defendants contended the facts alleged cannot

constitute the crime of counterfeiting because an airsoft gun is not a written instrument within

the meaning of the counterfeiting statute. As to all charges Lin, but not Yao, also argued

dismissal was required because Indiana lacked jurisdiction over the alleged offenses.3 The trial

court entered an order granting the Defendants’ motions to dismiss the counterfeiting charges but

denied the Defendants’ motions to dismiss the theft and corrupt business influence charges. The

trial court made no express ruling concerning Lin’s jurisdictional argument. See Appellant Lin’s

App. at A090-091. The trial court also certified its order for interlocutory appeal; the Defendants

separately appealed and the State cross-appealed.

After accepting jurisdiction and consolidating the Defendants’ appeals, the Court of

Appeals concluded that all charges should have been dismissed on grounds “the trial court lacked

territorial jurisdiction because there is no evidence any conduct that is an element of the alleged

offenses occurred in Indiana.” Yao v. State, 953 N.E.2d 1236, 1237 (Ind. Ct. App. 2011). The

State sought transfer, which we granted. See App. Rule 58(A). Additional facts are set forth

below where necessary.

2

As applicable to the Defendants in this case the statute provides in relevant part:

A person . . . who is employed by or associated with an enterprise, and

who knowingly or intentionally conducts or otherwise participates in the

activities of that enterprise through a pattern of racketeering activity;

commits corrupt business influence, a Class C felony.

Ind. Code § 35-45-6-2(3). As charged here “Racketeering activity” means “to commit” or “to attempt to

commit” theft. See I.C. § 35-45-6-1(e)(14).

3

Although he did not raise it before the trial court, Yao adopted this argument on appeal. As did the

Court of Appeals, we decline to find waiver. We summarily affirm this aspect of the court’s opinion.

3

Standard of Review

We review a trial court’s ruling on a motion to dismiss a charging information for an

abuse of discretion. State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008). “An abuse of discretion

occurs when the trial court’s decision is clearly against the logic and effect of the facts and

circumstances before it.” Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012). A trial court

also abuses its discretion when it misinterprets the law. State v. Econ. Freedom Fund, 959

N.E.2d 794, 800 (Ind. 2011).

Discussion

On motion by a defendant Indiana law permits dismissal of a charging information on a

number of grounds. See I.C. § 35-34-1-4. The Defendants here set forth two grounds for

dismissal of the charges: one, dismissal is proper because “[t]he facts stated do not constitute an

offense,” I.C. § 35-34-1-4(a)(5) and two, “[t]here exists some jurisdictional impediment to

conviction of the defendant for the offense charged.” I.C. § 35-34-1-4(a)(10). We address the

jurisdictional claim first.

A. Territorial Jurisdiction

Indiana Code section 35-41-1-1(b) provides “[a] person may be convicted under Indiana

law of an offense if: (1) either the conduct that is an element of the offense, the result that is an

element, or both, occur in Indiana.” (emphasis added). The Defendants argue the trial court

lacks jurisdiction over this prosecution because neither the “conduct that is an element of” nor

“the result that is an element” of the charged offenses occurred in Indiana. Br. in Opposition to

Trans. at 10-11.

We first observe that Indiana statutes do not list jurisdiction as an element of the offenses

for which these Defendants are charged. Nonetheless “[t]he plain, ordinary, and usual meaning

of [I.C. § 35-41-1-1] clearly establishes ‘in Indiana’ as a prerequisite for Indiana criminal

prosecutions and thus restricts the power to exercise criminal jurisdiction to Indiana’s actual

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territorial boundaries.” Benham v. State, 637 N.E.2d 133, 137 (Ind. 1994). Consequently, this

Court treats territorial jurisdiction as though it were an element of an offense and has held that

the State must prove this element “beyond a reasonable doubt.” Ortiz v. State, 766 N.E.2d 370,

375 (Ind. 2002). Precisely because this is so “the issue must be submitted to the jury unless the

court determines no reasonable jury could fail to find territorial jurisdiction beyond a reasonable

doubt.” Id. (quoting McKinney v. State, 553 N.E.2d 860, 863-64 (Ind. Ct. App. 1990)). If the

court makes such a determination then no jury instruction on the issue is required and the

question of jurisdiction is decided by the court as a matter of law. However, at this preliminary

stage of the proceedings with only arguments of counsel informing the trial court’s decision, the

basis of finding a lack of jurisdiction is necessarily constrained. And appellate review is limited

to whether the trial court abused its discretion.

With respect to the charge of theft, the conduct prohibited by statute is “exert[ion of]

unauthorized control.” I.C. § 35-43-4-2. The Defendants argue “[t]he only ‘exertion of control’

alleged by the State is the sale of airsoft guns.” Br. of Lin at 18. We first note that the charging

informations – which the Defendants seek to dismiss on jurisdictional grounds – make no

allegation concerning sale. Rather they simply track the language of the statute and declare in

relevant part:

Sometime from June 2009 to August 2009, in Huntington County,

Indiana, Yu-Ting Lin a/k/a Lin Yu Ting knowingly or intentionally

exerted unauthorized control over property belonging to Heckler &

Koch, Inc., with the intent to deprive the owner of any part of its

value or use, namely: trademarks and/or markings or symbols of

identification.

Appellant Lin’s App. at A-018-020; see Appellant Yao’s App. at 62-64 (identically-worded

information charging Yao with theft). Second, contrary to the Defendants’ apparent claim,

“exertion of control” is not limited to sale. Instead to “exert control” means to “obtain, take,

carry, drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to

secure, transfer, or extend a right to property.” I.C. § 35-43-4-1. If at trial the State fails to

prove beyond a reasonable doubt that the Defendants, in Indiana, engaged in any one or more of

these several forms of exerting control over the property of Heckler & Koch then the Defendants

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will be entitled to acquittal, or perhaps judgment on the evidence. But this is a sufficiency of the

evidence determination. At this stage of the proceedings we cannot say as a matter of law that

the charging information is jurisdictionally infirm. See, e.g., Benham, 637 N.E.2d at 138

(“[U]pon a motion to dismiss [under I.C. § 35-34-1-4(a)(10)] the defendant is required to prove

by a preponderance of the evidence every fact essential to support the motion.”) (internal

quotation marks omitted).

With respect to the charge of counterfeiting, the conduct prohibited by statute is

“mak[ing] or utter[ing]” a written instrument. I.C. § 35-43-5-2(a)(1) (now I.C. § 35-31.5-2-

345).4 Neither defendant makes a specific claim concerning this particular charge. Instead both

generally insist that all relevant conduct in this case took place in either Taiwan or the state of

Texas, and ground their argument on the meaning of the sale of goods as used in the Uniform

Commercial Code. First, similar to “exert control” under the theft statute, “mak[ing] or

utter[ing]” under the counterfeiting statute is not limited to the sale of goods. Rather, to “utter”

means “to issue, authenticate, transfer, publish, deliver, sell, transmit, present, or use.” I.C. § 35-

41-1-27. Second, even if the evidence later shows that the Defendants did not “sell” in Indiana

property belonging to Heckler & Koch (within the meaning of the criminal statutes), this says

nothing about whether the Defendants engaged in other forms of “making or uttering” a written

instrument in Indiana.

Consistent with the approach taken by the Court of Appeals in this case, the Defendants

also claim there cannot be a more expansive understanding of jurisdiction under the criminal law

than under the civil law. See Br. in Opposition to Trans. at 12. We disagree. Writing for a

unanimous Supreme Court, Justice Holmes laid down a broad basis for criminal territorial

jurisdiction: “Acts done outside a jurisdiction, but intended to produce and producing

detrimental effects within it, justify a State in punishing the cause of the harm as if he had been

present at the effect . . . .” Strassheim v. Daily, 221 U.S. 280, 285 (1911). Further, “the scope of

a state’s jurisdiction over defendants in criminal cases is bound up with the scope of its

substantive criminal law” and criminal jurisdictional doctrine evolved quite independently from

4

Pursuant to Senate Enrolled Act 26 enacted by the Indiana General Assembly in 2012, several Indiana

Code criminal law definitions were moved into a new section of the Code. For convenience and clarity,

we provide both citations.

6

the doctrine of civil jurisdiction. Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 37

(2010) (listing reasons for analyzing questions of criminal jurisdiction separately from questions

of civil jurisdiction). Cf. In re Vasquez, 705 N.E.2d 606, 609 (Mass. 1999) (“The jurisprudence

of personal jurisdiction has no bearing on the question whether a person may be brought to a

State and tried there for crimes under that State’s laws.”) Today, criminal jurisdiction is for the

most part a creature of expansive state statutes designed in part to permit prosecution for

consequences felt within a state resulting from criminal acts occurring outside a state. See

Wayne R. LaFave, et al., 4 Criminal Procedure § 16.4(c) at 847-49 (3d ed. 2007).

In sum, we cannot conclude that as a matter of law the Defendants engaged in no conduct

nor effected any result in Indiana that was an element of either the theft or the counterfeiting

charge. The trial court did not abuse its discretion in denying sub silentio Lin’s motion to

dismiss for lack of jurisdiction.

B. Do the Facts Alleged Constitute the Offense of Counterfeiting?

The Informations charging the Defendants with counterfeiting allege in relevant part:

Sometime from June 2009 to August 2009, in Huntington County,

Indiana, An-Hung Yao, a/k/a Andy An-Hung Yao, knowingly or

intentionally uttered a written instrument, namely: an airsoft gun,

in such a manner that it purported to have been made by another

person or by authority of one who did not give authority, namely:

Heckler & Koch, Inc.

Appellant Yao’s App. at 65; see also Appellant Lin’s App. A-015-017. Generally contending the

State is attempting to criminalize civil trademark infringement, and that an airsoft gun cannot

constitute a written instrument, the Defendants moved to dismiss the counterfeiting charges. The

trial court granted the motions.

To convict the Defendants of counterfeiting, the State must show they knowingly or

intentionally made or uttered a written instrument in such a manner that it purports to have been

7

made by authority of one who did not give authority. See I.C. § 35-43-5-2(a). For purposes of

the Indiana counterfeiting statute, “written instrument” is defined as follows:

“Written instrument” means a paper, a document, or other

instrument containing written matter and includes money, coins,

tokens, stamps, seals, credit cards, badges, trademarks, medals,

retail sales receipts, labels or markings (including a universal

product code (UPC) or another product identification code), or

other objects or symbols of value, right, privilege, or identification.

I.C. § 35-43-5-1(t).

The Defendants’ claim that their airsoft guns cannot constitute a written instrument is

premised on their reading of the foregoing statute. In short, according to the Defendants, a

written instrument must consist of a “paper, a document, or other instrument containing written

matter.” As the Defendants see it, the remainder of the statute merely provides examples of

instruments containing written matter. In other words, the Defendants contend the “instrument”

must contain “written matter” – which could be merely a marking or stamping of some kind – in

order to qualify as an object of the counterfeiting statute. And the Defendants appear to argue

that because the toy guns obviously are not pieces of paper or documents and contain no written

matter, they cannot be counterfeited.5

On the other hand the State views the definition of “written instrument” as “a paper, a

document, or other instrument containing written matter . . . or other objects or symbols of value,

right, privilege, or identification.” According to the State the phrase “and includes money, coins,

. . . labels or markings . . . etc.” modifies the term “instrument containing written matter.” In

other words, a written instrument could be an instrument containing written matter or it could be

an object or symbol of value, right, privilege, or identification – whether or not such object or

symbol contains any writings or markings.

5

The record is not entirely clear as to whether the airsoft guns “contain[ed] written matter.” At the

hearing on the Defendants’ motions to dismiss, the State argued that no such marking or inscription was

necessary because the guns themselves, in their design, constituted “written instruments” under the

counterfeiting statute. See Lin’s Tr. of Hrg. on Mot. to Dismiss at 31-32. Alternatively, the State argued

that the guns did contain such a marking and therefore the guns were “written instruments” if such

marking was necessary to make them so. See Lin’s Tr. of Hrg. on Mot. to Dismiss at 31-32.

8

We think the State has the better of the argument. It is true that criminal statutes must be

strictly construed against the State, and “may not be enlarged beyond the fair meaning of the

language used and . . . held to include offenses other than those clearly defined.” Bond v. State,

515 N.E.2d 856, 857-58 (Ind. 1987). However, when the language is susceptible to more than

one construction, we must construe the statute in accord with the apparent legislative intent.

This is done by “giving effect to the ordinary and plain meaning of the language used in the

statute.” Clifft v. Ind. Dept. of State Revenue, 660 N.E.2d 310, 316 (Ind. 1995) (citing Helton v.

State, 624 N.E.2d 499, 506 (Ind. Ct. App. 1993)). Also, penal statutes are not to be read so

narrowly as to exclude instances the statute fairly covers or in a manner that disregards

legislative purposes and intent. Merritt v. State, 829 N.E.2d 472, 475 (Ind. 2005).

The case of Jacobs v. State, 640 N.E.2d 61 (Ind. Ct. App. 1994), trans. denied, is

instructive. In that case the defendant was charged with Class C felony forgery for selling t-

shirts displaying the federally registered trademarks of Guess, Nike, and Polo. Like the

counterfeiting statute, Indiana’s forgery statute applies to the making or uttering of a “written

instrument” as defined in Indiana Code section 35-43-5-1.6 The Court of Appeals reviewed the

legislative history and purpose of the “written instrument” definition and concluded that in

revising the statute in 1976 the General Assembly intended to broaden the definition of the term.

See id. at 65. The result of this, the court concluded, was that the statute “encompass[ed] a wide

range of prohibited conduct” including “the forgery of a registered trademark on a t-shirt.” Id.

at 64-65.7

At first blush it seems intuitive that “written instrument” must at least consist of a

document of some kind. But we agree with the Jacobs court that the Legislature broadened the

scope and definition of “written instrument” to include more than just documents, paper, and

other instruments containing written matter. Instead the definition includes “other objects or

6

The statute in Jacobs was essentially the same as it is today. Written instrument was defined as “a

paper, document, or other instrument containing written matter and includes money, coins, tokens,

stamps, seals, credit cards, badges, trademarks, medals, or other objects or symbols of value, right,

privilege, or identification.” I.C. § 35-43-5-1 (1994 supp.).

7

Although the Jacobs holding applied to the printing on a t-shirt, the Jacobs court did not foreclose the

possibility that the physical object (the t-shirt itself) could constitute a written instrument.

9

symbols of value, right, privilege, or identification.” It seems clear enough to us that a handgun

or rifle – just as an unsigned Monet painting, Frederick Remington sculpture, or Tiffany vase –

could be subject to counterfeiting. To require actual writing or markings on a replica in order to

bring it within the reach of the counterfeiting statute would defeat the purpose of the statute and

eliminate a very wide range of items. We are not convinced the Legislature intended such a

result.

We conclude that Defendants’ airsoft gun is a written instrument within the meaning of

the statute and therefore reverse the trial court’s dismissal of the counterfeiting charges.

C. Do the Facts Alleged Constitute the Offense of Theft?

The Informations charging the Defendants with theft allege in relevant part:

Sometime from June 2009 to August 2009, in Huntington County,

Indiana, Yu-Ting Lin a/k/a Lin Yu Ting knowingly or intentionally

exerted unauthorized control over property belonging to Heckler &

Koch, Inc., with the intent to deprive the owner of any part of its

value or use, namely: trademarks and/or markings or symbols of

identification.

Appellant Lin’s App. at A-018-020; see also Appellant Yao’s App. 62-64. The trial court denied

the Defendants’ motions to dismiss the theft charges and the related corrupt business influence

charges. The Defendants contend this was error because the facts alleged do not constitute the

offense of theft. See I.C. § 35-34-1-4(a)(5).

Indiana Code section 35-43-4-2 provides in relevant part: “A person who knowingly or

intentionally exerts unauthorized control over property of another person, with intent to deprive

the other person of any part of its value or use, commits theft, a Class D felony.” In advancing

their arguments the Defendants make two claims. First, “trademarks and/or markings or

symbols” as alleged in the State’s charging informations cannot constitute “property” under the

theft statute. Second, “it is not theoretically possible . . . to ‘exert unauthorized control’ over the

10

trademarks and/or markings or symbols.” Appellant Lin’s App. at A-040; See Appellant Yao’s

App. at 40.

1. Trademarks, markings, and symbols as property

Indiana Code section 35-41-1-23(a) (now I.C. § 35-31.5-2-253(a)) defines “property” as

“anything of value.” The statute specifies that property includes, among other things, “a gain or

advantage,” “real property, personal property, money, labor, and services,” “intangibles,” and

“trade secrets.” I.C. § 35-41-1-23(a)(1), (2), (3), (9) (now I.C. § 35-31.5-2-253(a)(1), (2), (3),

(9)). The definition of property as “anything of value” including “intangibles” is extremely

broad and we see no reason it could not encompass the charged “trademarks and/or markings or

symbols of identification.” See State v. McGraw, 480 N.E.2d 552, 554 (Ind. 1985) (recognizing

that the information derived from use of a computer constitutes property under the theft statute).

Cf. Conwell v. Gray Loon Outdoor Mktg. Grp., Inc., 906 N.E.2d 805, 818 (Ind. 2009) (Boehm,

J. concurring in result) (agreeing with the majority’s implication “that a website design is

personal property and is subject to a conversion claim, whether or not it is ‘goods’ subject to the

Uniform Commercial Code”). We hasten to add that we do not declare that the “trademarks

and/or markings or symbols of identification” at issue in this case actually have any value.

Rather this is an evidentiary matter that is subject to proof at trial. At this stage of the

proceedings we reach the narrow conclusion that the charged items may constitute property

depending on the evidence.

2. Exertion of control over trademarks, markings, and symbols

As discussed earlier, Indiana Code tells us what it means to “exert control” for purposes

of the theft statute. “‘[E]xert control over property’ means to obtain, take, carry, drive, lead

away, conceal, abandon, sell, convey, encumber, or possess property, or to secure, transfer, or

extend a right to property.” I.C. § 35-43-4-1(a). The Defendants contend that it is “not

theoretically possible” to “‘exert unauthorized control’ over a third party’s trademark right.”

Appellant Lin’s Br. at 9. And this is so, according to the Defendants, because a trademark is

merely the right to use an “identifier” to designate origin or aid in the sale of goods. Appellant

11

Lin’s Br. at 9. Thus, the argument continues, the property over which the Defendants are alleged

to have exerted unauthorized control is H & K’s right to sell products with a distinctive

appearance. This, according to Defendants, may constitute trademark infringement but it cannot

amount to the exertion of unauthorized control. The Defendants also cite an unpublished federal

district court opinion that concluded: “[N]either the Defendants’ copying of the distinct look of

the [H & K] weapon nor the use of [H & K’s registered trademark] itself constitutes obtaining,

taking, carrying, driving, leading away, concealing, abandoning, selling, conveying,

encumbering, or possessing [H & K’s] intangible property.” Heckler & Koch, Inc. v. German

Sport Guns GMBH, No. 09-cv-00039-WTL-JMS, 2009 WL 3200587, at *1 (S.D. Ind. Sept. 25,

2009). The court’s rationale is not readily apparent. In any event we disagree with the court’s

conclusion. First, we are examining a statute which clearly prohibits a very wide range of

activity. See Nash v. State, 433 N.E.2d 807, 813 (Ind. Ct. App. 1982) (“It is well established in

Indiana that subsection (a) of the theft statute, which makes it an offense to knowingly exert

unauthorized control over property of another, comprehends a broad field of conduct . . . .”).

Second, we see no reason a trademark right cannot at least be “encumbered.” See, e.g., Black’s

Law Dictionary 607 (9th ed. 2009) (defining “encumbrance” as “[a] claim or liability that is

attached to property or some other right and that may lessen its value . . . ”); see also TRIPS:

Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 20, 33 Int’l Legal

Materials 908 (“The use of a trademark in the course of trade shall not be unjustifiably

encumbered by special requirements, such as use with another trademark, use in a special form

or use in a manner detrimental to its capability to distinguish the goods or services of one

undertaking from those of other undertakings.”).

At the heart of and woven throughout the Defendants’ argument is the insistence that this

case should be resolved under civil trademark infringement law, not criminal law. Lin argues for

example, “[b]y taking sides in this commercial dispute and trying to force a resolution in H [&]

K’s favor under the coercive power of the criminal law, the State has subverted the process of

rights-determination that trademark law is intended to embody.” Appellant Lin’s Br. at 8. But

8

More specifically, TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Art. 20,

Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M.

90.

12

whether a theft prosecution is “the ‘wrong tool for the job’ when it comes to defining intellectual

property interests,” Appellant Yao’s Br. at 15 (quoting 4 J. Thomas McCarthy, McCarthy on

Trademarks and Unfair Competition § 25:9:50 (4th ed. 2008)), is not our decision to make.

Rather, our job is to apply the Indiana criminal statutes as drafted by the Legislature. And under

those statutes, the questions in this case include whether the Defendants, did beyond a reasonable

doubt: 1) knowingly or intentionally; 2) obtain, take, carry, sell, convey, encumber, or possess

property, or secure, transfer, or extend a right to property; 3) which property belonged to H & K;

4) without H & K’s consent; 5) with intent to deprive H & K of any part of the property’s value

or use? And these are all questions of fact that cannot be determined on a motion to dismiss. Cf.

McGraw, 480 N.E.2d at 553 (recognizing in prosecuting a person for unauthorized use of a

computer as theft that dismissal may have been improper but judgment on the evidence was

properly granted because the evidence did not support all the elements required by the theft

statute). In this case, the trial court did not abuse its discretion in denying Defendants’ motions

to dismiss the theft and corrupt business influence charges.

Conclusion

We affirm the trial court’s denial of the motions to dismiss the charging informations on

jurisdictional grounds, and its denial of Defendants’ motions to dismiss the charging

informations alleging theft and corrupt business influence. We reverse the trial court’s grant of

the Defendants’ motion to dismiss the charging informations alleging counterfeiting.

Dickson, C.J., and David and Massa, JJ., concur.

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