Jonathan Kent Roy v. State of Indiana

FILED
Jul 21 2017, 6:35 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Yvette M. LaPlante Curtis T. Hill, Jr.
Keating & LaPlante, LLP Attorney General of Indiana
Evansville, Indiana
Laura R. Anderson
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jonathan Kent Roy, July 21, 2017
Appellant-Defendant, Court of Appeals Case No.
82A01-1701-CR-204
v. Appeal from the Vanderburgh Circuit
Court.
The Honorable Kelli E. Fink,
State of Indiana, Magistrate.
Appellee-Plaintiff. Trial Court Cause No.
82C01-1606-F5-3289
Darden, Senior Judge
Statement of the Case
[1] Jonathan Kent Roy appeals the trial court’s denial of his Petition for Return of
Property, in which he asked the court to order the State to return a handgun to
his mother. We reverse and remand.
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Issue
[2] Roy raises one issue, which we restate as: whether the trial court erred in
denying Roy’s petition.
Facts and Procedural History
[3] On June 4, 2016, police officers were dispatched to investigate a reported break-
in at a commercial building. One of the officers looked in a window and saw
Roy sitting on an air mattress, tending to a cut on his leg. As the officer
watched, Roy picked up and then hid a handgun. When another officer
knocked on the door, Roy grabbed the gun and ran to another part of the
building before returning to his original location. The officers entered the
building and took Roy into custody. They found the handgun, a .357 magnum
silver Colt Trooper Mark III revolver bearing serial number L6744, in a
backpack. Later, an officer searched for information about the handgun in an
online database, which indicated that a handgun bearing serial number L6744
had been reported stolen in Texas in 1991.
[4] The State charged Roy with burglary, a Level 5 felony; theft of a firearm, a
Level 6 felony; and carrying a handgun without a license, a Class A
misdemeanor. Roy and the State executed a plea agreement, pursuant to which
Roy pleaded guilty to criminal trespass, a Class A misdemeanor, and carrying a
handgun without a license, a Class A misdemeanor. The court accepted the
plea agreement and imposed a sentence of time served.
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[5] On September 15, 2016, Roy filed a Petition for Return of Property, requesting
the court to order the return of the handgun to him or his designee. The court
held an evidentiary hearing on December 15, 2016. During the hearing, Roy
requested the court to order the return of the handgun to his mother, asserting
she was the rightful owner and had loaned the handgun to him. He further
claimed the handgun had originally belonged to his father since the 1980s, and
his father had died approximately seven years earlier. The court concluded that
1
Roy’s mother was not the rightful owner and denied Roy’s petition. This
appeal followed.
Discussion and Decision
[6] Roy argues the court’s decision is unsupported by the evidence and should be
reversed. A person seeking the return of property seized by the State during an
investigation must prove by a preponderance of the evidence that he or she is
the rightful owner of the property. Tracy v. State, 655 N.E.2d 1232, 1236 (Ind.
Ct. App. 1995), trans. denied. Upon review of the denial of a motion for return
of property, we will affirm unless the decision is clearly erroneous and cannot
be sustained on any legal theory supported by the evidence. Barany v. State, 54
N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied, cert. denied. Statutes that
relate to search and seizure must be strictly construed in favor of the
1
We thank the trial court for its detailed findings, which aided our review.
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constitutional right of the people. Williams v. State, 952 N.E.2d 317, 319 (Ind.
Ct. App. 2011) (quotation omitted).
[7] The parties agree that this case is governed by Indiana Code section 35-47-3-2
(2014). That statute provides, in relevant part:
(b) Firearms shall be returned to the rightful owner at once
following final disposition of the cause if a return has not already
occurred under the terms of IC 35-33-5. If the rightful ownership
is not known the law enforcement agency holding the firearm
shall make a reasonable attempt to ascertain the rightful
ownership and cause the return of the firearm. However,
nothing in this chapter shall be construed as requiring the return
of firearms to rightful owners who have been convicted for the
misuse of firearms. In such cases, the court may provide for the
return of the firearm in question or order that the firearm be at
once delivered:
(1) except as provided in subdivision (2), to the sheriff’s
department of the county in which the offense occurred; or
(2) to the city or town police force that confiscated the firearm.
Id. In addition, Indiana Code section 35-33-5-5 (2007) states as to property that
has been seized by the police: “Property which may be lawfully possessed shall
be returned to its rightful owner, if known.”
[8] Roy argues the trial court erred in concluding his mother was not the lawful
and rightful owner of the firearm. We agree. The State’s evidence consisted of,
and depended entirely upon, the equivocal testimony of Deputy Joshua
Patterson, who presented evidence in support of an unsupported theory that the
handgun the officers found on Roy had been reported stolen from Fort Bliss in
El Paso, Texas in 1991. Deputy Patterson testified as follows:
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Q Can you discuss the process of your investigation and
findings?
A I was contacted by the Prosecutor’s Office in reference to
this case, at that time I attempted to, when the incident
first occurred it appeared that the officer that was involved
with the case, the EPD officer, attempted to contact the
agency in which the firearm was stolen from which
happened to be a military base down in Texas, I cannot
think of the name of the military base off the top of my
head. They advised they would get back to that officer,
apparently, they never have. At that point I attempted to
make contact with them on several occasions, have talked
to a few people who were going to have an investigator
call me back, but to no avail they, I've never received a call
back from them.
Tr. Vol. I, pp. 16-17.
[9] Roy presented Defendant’s Exhibit 2, a printout from the Colt website showing
the handgun that the police had found on Roy and another handgun had the
same serial number. Deputy Patterson testified about that document and his
investigation as follows:
Q I’m going to show you what’s been marked as Defendant’s
exhibit 2 and ask you if you’ve seen something similar to
that or if you actually have seen that very document on the
Colt website?
A Yes, I have seen this.
Q Okay, and does that indicate that there are two different
specific firearms that contain the same serial number?
A It does show that, it appears there are two firearms that are
associated with that serial number.
Q Okay, and you have made efforts to determine whether or
not this Colt Trooper .357 with that serial number was
stolen, is that right?
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A I have attempted to make that.
Q Have you been successful in making a determination
whether or not that firearm was in fact stolen?
A I have been unable to contact the agency that put out that
specific firearm, that hit request, as being stolen.
Q Okay, and NCIC reports are somewhat related to the
accuracy with the data that is entered, are they not?
A That is correct.
Q. So if the data is entered erroneously for example, then it’s
only as good as the agency that put it in?
A That is correct.
Q So it’s theoretically possible that the agency that put in a
stolen Colt .357 could have mistakenly entered the serial
number?
A That is correct.
Q Okay, and there’s no way for us to determine that without
getting some confirmation from that agency?
A That is correct.
Id. at 14-15.
[10] Deputy Patterson acknowledged that he did not have any hard evidence to
support the allegation that the particular handgun in question was stolen.
Although making diligent efforts to follow up in his investigation regarding the
details of the reported 1991 theft of a handgun, he was unsuccessful. The
evidence shows that after he made several contacts and spoke with personnel
therein, no one at the Texas agency he contacted ever returned his calls with
follow-up details regarding the reported stolen handgun. In addition, the State
neither presented a photocopy of the 1991 reported stolen handgun nor
introduced into evidence a copy of the stolen handgun report. Furthermore, the
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State did not present any evidence depicting any facts and/or circumstances
surrounding the theft of a handgun as related to in the report.
[11] Deputy Patterson, a long-time investigator, further testified that the reliability of
a report depends heavily upon the accuracy of the details and numbers as noted
in the report. He testified that based upon his experience, he has encountered
situations wherein details or numbers have been transposed or otherwise
inaccurately entered into a report, including reports entered on the national
database he consulted in this case. Id. at 22-23.
[12] By contrast, Roy’s mother identified and testified unequivocally that Roy’s
father had owned the handgun in question before their marriage in 1985.
Further, police records show that law enforcement, pursuant to a search
warrant, temporarily confiscated the handgun from Roy’s father in 2000 and
later returned it to him in 2001. There is no indication that law enforcement
checked at that time to see if the handgun was reported stolen, although Deputy
Patterson testified it was his practice to check the status of all firearms he
encounters in criminal investigations.
[13] Roy’s brother Clint identified and testified unequivocally that their mother had
loaned the Colt handgun to Roy for his protection. Clint also authenticated a
photograph of the handgun he had taken in the year 2015.
[14] We are mindful of our standard of review. Even so, based on the evidence
presented, the uncorroborated and possible erroneous report cannot sustain the
court’s judgment. The trial court’s decision is clearly erroneous because Roy
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established by a preponderance of the evidence that his mother was the lawful
and rightful owner of the handgun. See Williams, 952 N.E.2d at 320 (reversing
denial of motion for petition to return handgun; undisputed evidence
established defendant’s attorney had valid ownership interest in handgun).
Conclusion
[15] For the reasons stated above, we reverse the judgment of the trial court and
remand for further proceedings consistent with this decision.
[16] Reversed and remanded.
Bailey, J., and Robb, J., concur.
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