Gregory Long v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Mar 22 2016, 9:56 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT
Timothy J. Burns
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gregory Long, March 22, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1509-CR-1346
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy M. Jones,
Appellee-Plaintiff Judge
The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G08-1410-CM-049718
Bradford, Judge.
Case Summary
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[1] On October 30, 2014, Appellant-Defendant Gregory Long was sitting in his
pick-up truck, which was parked partially in the road such that it was blocking
traffic. A passerby saw that Long and his passenger were unresponsive and
appeared to be in trouble. The passerby called 911 and emergency responders
arrived shortly thereafter. Police found an unloaded handgun in a holster lying
on the driver’s side floorboard. Appellee-Plaintiff the State of Indiana charged
Long with Class A misdemeanor carrying a handgun without a license. A jury
found Long guilty as charged and he was subsequently sentenced to a one-year
term suspended to probation. On appeal, Long argues that he was in
compliance with a statutory exception permitting him to transport a handgun
without a license. We find that there was sufficient evidence to support Long’s
conviction. Affirmed.
Facts and Procedural History
[2] On October 30, 2014, witness Mark Campbell was driving near 16th street in
Indianapolis when he saw a pick-up truck parked halfway in the street
obstructing traffic. As Campbell pulled around the truck, he looked inside and
saw two men in the vehicle who appeared to be “passed out” and “in trouble.”
Tr. pp. 37, 38. Campbell immediately parked, left his vehicle, and approached
the truck. Campbell called 911 after he noticed that “the guy in the passenger
seat was leaned all the way over onto the driver and he had some kind of foam
type stuff coming out of his mouth.” Tr. p. 39. Indianapolis Metropolitan
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Police Officer Mark Hamner and EMTs arrived shortly thereafter and assisted
the driver, Long, to the back of his truck and seated him on the tailgate.
[3] One of the medics signaled Officer Hamner to approach the driver side of the
truck. The driver’s door was open and Officer Hamner observed a handgun in
a black holster on the floorboard of the driver’s side of the truck. Officer
Hamner testified that “the gun was positioned in a place that would be easily
accessible to a driver.” Tr. p. 48. Officer Hamner took possession of the
firearm and found that it was unloaded. Long admitted that the gun was his
and that he did not have a valid permit to carry a handgun on October 30, 2014.
Long testified that he believed he was in compliance with an Indiana handgun
law which permits the transportation of an unloaded handgun without a license
under certain conditions.1
[4] Long was charged with Class A misdemeanor carrying a handgun without a
license. The matter was tried by a jury on July 27, 2015, and Long was found
guilty as charged. The trial court sentenced Long to one year suspended to
probation.
Discussion and Decision
[5] On appeal, Long argues that the manner in which he was transporting the
handgun met the statutory exception to the license requirement and that there
1
See Ind. Code § 35-47-2-1.
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was insufficient evidence to prove otherwise. Long also argues that even if he
did not meet the transportation exception requirements, he was reasonably
mistaken about a fact that led him to believe he was in compliance with the
law.
[6] When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original).
[7] The State did not file an appellee’s brief. When a party does not file an
appellate brief, we do not undertake the burden of developing arguments for the
appellee. Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an
appellee does not file a brief, we apply a less stringent standard of review and
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may reverse the trial court when the appellant establishes prima facie error. Id.“Prima facie” is defined as “‘at first sight, on first appearance, or on the face of
it.’” Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App.
2003)).
[8] Indiana Code section 35-47-2-1 provides, in relevant part, as follows:
(a) Except as provided in subsections (b) and (c) and section 2 of
this chapter, a person shall not carry a handgun in any vehicle or
on or about the person’s body without being licensed under this
chapter to carry a handgun.
(b) Except as provided in subsection (c), a person may carry a
handgun without being licensed under this chapter to carry a
handgun if:
(1) the person carries the handgun on or about the person’s
body in or on property that is owned, leased, rented, or
otherwise legally controlled by the person;
***
(3) the person carries the handgun in a vehicle…if the
handgun is:
(A) unloaded;
(B) not readily accessible; and
(C) secured in a case[.]
[9] Long argues that his actions fell under the subsection (b)(3) exception. It is
undisputed that the handgun was unloaded. However, there is evidence
suggesting that the gun was readily accessible and that it was not secured in a
case. Officer Hamner testified that the gun was on the floorboard of the driver’s
side of the truck and “was positioned in a place that would be easily accessible
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to a driver.” Tr. p. 48. Long testified that he placed the gun under the back
seat but speculates that “it is quite likely the trucks [sic] awkward angle on the
street may very well have shaken the gun loose from its earlier position” and
onto the front floorboard. Appellant’s Br. p. 10. However, the jury, as the
finder of fact, was under no obligation to credit Long’s self-serving testimony
and apparently did not. See Wood v. State, 999 N.E.2d 1054, 1064 (Ind. Ct.
App. 2013) (noting that the trier of fact is not required to believe a witness’s
testimony even when it is uncontradicted). We find that there was sufficient
evidence for the jury to conclude that the gun was in a readily accessible
location and, therefore, that Long’s actions did not fall into the exception for
unlicensed transportation of a firearm.
[10] Long also argues that he reasonably believed that the holster in which the gun
was found was a “case” as is required by subsection (b)(3)(C) and that this
honest mistake negates the culpability required for commission of the offense.
However, we need not reach the merits of this novel argument. Even if we
were to determine that a holster could be reasonably considered a “case” for the
purposes of Indiana Code section 35-47-2-1, it would not warrant reversal of
Long’s conviction. Because the three requirements under subsection (b)(3) are
written in the conjunctive, failing to meet any one requirement precludes
invoking the exception. As we have already determined, there was sufficient
evidence to conclude that the gun was readily accessible by Long. Therefore,
whether Long can show he reasonably believed he was complying with the
“case” requirement is irrelevant.
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[11] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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