Cleetus Nickson v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 19 2017, 10:24 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cleetus Nickson, December 19, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1707-CR-1569
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Linda E. Brown,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G10-1701-CM-3276
Brown, Judge.
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[1] Cleetus Nickson appeals his conviction for carrying a handgun without a
license as a class A misdemeanor. He raises one issue which we revise and
restate as whether the evidence is sufficient to sustain his conviction. We
affirm.
Facts and Procedural History
[2] On January 24, 2017, Indianapolis Metropolitan Police Officer Matt Minnis
observed Nickson driving a vehicle and following the car in front of him very
closely. Officer Minnis caught up to Nickson’s vehicle, observed that his
license plate had a 2016 sticker, determined that Nickson was speeding, and
initiated a traffic stop because the plate was showing expired and Nickson was
speeding.
[3] As Officer Minnis approached the passenger side, he observed Nickson reach
around with his right hand to behind the passenger seat and then immediately
bring it back to his lap area. Officer Minnis pulled his flashlight out and shined
it through the passenger side, and saw a cloth gun holster in Nickson’s lap.
Officer Minnis requested back-up and told Nickson why he had pulled him
over.
[4] After Officer Angelika Matuszczyk arrived at the scene, Officer Minnis asked
for Nickson’s license, Nickson gave him his license and a gun permit, and
Officer Minnis went to his vehicle. Officer Matuszczyk shined her flashlight in
the back of Nickson’s vehicle, observed a handgun on the floorboard behind the
passenger’s seat, and asked the passenger to step out of the vehicle.
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[5] Officer Minnis performed a BMV check on Nickson which showed that
Nickson was a valid driver but had a revoked handgun permit. Officer Minnis
read Nickson his Miranda rights, and he acknowledged that he understood
them. Officer Minnis informed another officer that the BMV check led him to
discover that Nickson had a revoked handgun permit, and Nickson said, “Well
I said the gun permit might have been revoked.” Transcript at 10.
[6] At some point, Officer Craig Solomon, a firearm liaison, arrived on the scene.
Officer Solomon read Nickson his Miranda rights, and Nickson stated that he
understood. Nickson told Officer Solomon that it was his gun, identified it by
the make and caliber, told him where he purchased it, the purchase price, and
that he had placed it on the rear floorboard of the car. Nickson also made
“some mention of a restraining order involving his ex-wife.” Id. at 27.
[7] On January 25, 2017, the State charged Nickson with carrying a handgun
without a license as a class A misdemeanor. On June 23, 2017, the court held a
bench trial. Officers Minnis, Matuszczyk, and Solomon testified. After the
State rested, Nickson’s counsel moved for an involuntary dismissal and argued
that the State had not proven that Nickson had carried a handgun knowingly
without a valid handgun permit, and the court denied the motion.
[8] Nickson then testified that he did not know that he had the gun in his car, that
he normally kept the gun on him, and “that’s why my holster was in the car.”
Id. at 45. He testified that he did not know whether his handgun permit had
been revoked, he had never received any documentation stating that his
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handgun might be revoked, and that he believed his license was valid. On
cross-examination, Nickson testified that he received a protective order from his
ex-wife and that he read that order. He stated that he never told Officer
Solomon that the gun was his or that he placed it in the car. He also testified
his protective order expired in 2015, that he thought he could carry after the
protective order expired, and that he never made the statement that his permit
might be revoked. When asked if he went through a process to have his gun
license restored, Nickson answered: “Uh, I didn’t know that I had to.” Id. at
48. The court found Nickson guilty as charged and sentenced him to 365 days
with 361 days suspended.
Discussion
[9] The issue is whether the evidence is sufficient to sustain Nickson’s conviction
for carrying a handgun without a license as a class A misdemeanor. When
reviewing the sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and reasonable inferences supporting the
verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is not necessary that the evidence overcome
every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient
if an inference may reasonably be drawn from it to support the verdict. Id.
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[10] At the time of the offense, Ind. Code § 35-47-2-1 provided in part that “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” and that “[a]
person who knowingly or intentionally violates this section commits a Class A
misdemeanor.”1 The Indiana Supreme Court has held that, “once the State has
established that the defendant carried a handgun on or about his person, away
from his residence or place of business, the burden then shifts to the defendant
to demonstrate that he possessed a valid license.” Harris v. State, 716 N.E.2d
406, 412 (Ind. 1999). See also Wilson v. State, 39 N.E.3d 705, 717 (Ind. Ct. App.
2015) (“Once the State demonstrates that a defendant had possession of a
handgun on his body or in a vehicle, it then becomes the defendant’s burden to
demonstrate that he had a valid license to carry the handgun.”) (citing
Armstrong v. State, 742 N.E.2d 972, 977 (Ind. Ct. App. 2001)), trans. denied.
Proof that the defendant had a license is an exception to the offense, and the
burden is on the defendant to prove he possessed a valid license. Harris, 716
N.E.2d at 411. “Further, Ind. Code § 35-47-2-24 places the burden on the
defendant to prove he or she has a license or was exempt from the statute.” 2 Id.
1
Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1, 2017).
2
Ind. Code § 35-47-2-24 provides:
(a) In an information or indictment brought for the enforcement of any provision of this
chapter, it is not necessary to negate any exemption specified under this chapter, or to
allege the absence of a license required under this chapter. The burden of proof is on
the defendant to prove that he is exempt under section 2 of this chapter, or that he has
a license as required under this chapter.
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[11] Nickson acknowledges that the gun was found on the floor of the backseat of
his vehicle and that he identified the gun as belonging to him. He argues that
he denied knowledge of the gun’s presence in the car and asserts that he
believed he had a valid permit for the gun. He asserts he provided a “lifetime”
gun permit to Officer Minnis and that there was insufficient evidence to
demonstrate that his permit had been revoked. Appellant’s Brief at 8. He
contends that no certified record was submitted to show a revocation of the
permit or when such revocation occurred. The State argues that Nickson failed
to meet his burden to show that he had a valid license at the time he was
carrying the handgun. It also contends that the evidence established that his
license was revoked and that he was aware it was invalid at the time he carried
a firearm in his vehicle.
[12] To the extent Nickson argues that he denied knowledge of the gun’s presence in
the car, the record reveals that Officer Minnis testified that he observed Nickson
reach around with his right hand to behind the passenger seat and then
immediately bring it back to his lap area and that he saw a cloth gun holster in
Nickson’s lap. Officer Matuszczyk testified that she observed a handgun on the
floorboard behind the passenger’s seat. Further, Officer Solomon testified that
Nickson told him that he had placed the gun on the rear floorboard of the car.
(b) Whenever a person who has been arrested or charged with a violation of section 1 of
this chapter presents a valid license to the prosecuting attorney or establishes that he is
exempt under section 2 of this chapter, any prosecution for a violation of section 1 of
this chapter shall be dismissed immediately, and all records of an arrest or proceedings
following arrest shall be destroyed immediately.
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[13] With respect to Nickson’s argument that he believed his gun permit was valid,
we observe that, when asked what his BMV check showed, Officer Minnis
answered: “Uh, that he was a valid driver I believe, but that he had a revoked
handgun permit.” Transcript at 7. When asked to explain the process for
finding out that he had a revoked handgun permit, Officer Minnis stated:
Uh, when you run someone’s name in our system, if they’ve ever
had one (1), a handgun permit that is, or had one (1) revoked, it
will show up; and in this case it showed that he had had one (1)
originally approved, and that it had been revoked at a later time.
Id. Officer Minnis also testified that he heard Nickson state: “Well I said the
gun permit might have been revoked.” Id. at 10. On cross-examination,
Nickson’s counsel stated: “Uh, now you indicated on direct that he had made a
comment that – oh shit, that’s right it might have got revoked.” Id. at 16.
Officer Minnis answered: “Correct.” Id.
[14] Under the circumstances, we conclude that the State presented evidence of a
probative nature from which a reasonable trier of fact could have determined
beyond a reasonable doubt that Nickson carried a handgun without a license
and we cannot say that Nickson met his burden to demonstrate that he
possessed a valid license.
Conclusion
[15] For the foregoing reasons, we affirm Nickson’s conviction.
[16] Affirmed.
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Baker, J., and Riley, J., concur.
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