In Re the Matter of: D.L. v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DAVID D. BECSEY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
May 22 2013, 9:19 am
IN THE
COURT OF APPEALS OF INDIANA
IN RE THE MATTER OF: )
D.L., )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1210-JV-851
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
The Honorable Marilyn A. Moores, Judge
Cause No. 49D09-1209-JD-2426
May 22, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
BAKER, Judge
In this case, appellant-defendant D.L. appeals the juvenile court’s finding that he
committed the offense of Dangerous Possession of a Firearm,1 a class A misdemeanor, if
committed by an adult. D.L. challenges the sufficiency of the evidence, claiming that the
State failed to demonstrate that the object a police officer retrieved from the vehicle in
which D.L. was a passenger, was a firearm within the meaning of the statute.
Although the weapon was not introduced into evidence at the adjudication hearing,
the officer identified the object that he retrieved from the vehicle as a handgun. The
evidence also established that the police officer had served on the Indianapolis
Metropolitan Police Department (IMPD) for twenty-three years, was required to carry a
handgun, and had to be skilled with that weapon.
In light of these circumstances, we conclude that the juvenile court, as the finder
of fact, reasonably inferred that the handgun recovered from the vehicle in which D.L.
was riding was a firearm within the meaning of the statute. Thus, we affirm the judgment
of the juvenile court.
FACTS
At approximately 2:15 a.m. on September 9, 2012, Indianapolis Metropolitan
Police Department (IMPD) Officer Lawrence Wheeler received a dispatch to investigate
several juveniles in Patricia Park who were gambling and armed with handguns. When
Officer Wheeler reached the roadway to the park, he received additional information that
shots had been fired and individuals with guns were entering vehicles and fleeing the
1
Ind. Code § 35-47-10-5.
2
area. When Officer Wheeler entered the park, he was able to block the road and prevent
two vehicles from leaving.
After additional police cruisers arrived, Officer Wheeler approached one of the
vehicles and told the four occupants, one of whom was D.L.—a backseat passenger—to
raise their hands. Immediately thereafter, Officer Wheeler saw D.L. kick a metal object
under the seat in front of him. Officer Wheeler instructed D.L. to stop moving, walked
around to the passenger side of the vehicle, and opened the door. After noticing the
object that D.L. had kicked under the seat was a handgun, Officer Wheeler retrieved the
gun, removed D.L. from the vehicle, and handcuffed him. When Officer Wheeler asked
D.L. if the gun was his, D.L. responded that he had “never seen it before.” Tr. p. 12.
Officer Wheeler then arrested D.L. for possession of the handgun.
On September 10, 2012, the State filed a petition alleging that D.L. committed the
delinquent acts of dangerous possession of a firearm and carrying a handgun without a
license, both class A misdemeanors if committed by an adult. At the adjudication hearing
that commenced on October 2, 2012, the actual gun was not introduced into evidence.
However, Officer Wheeler testified to the above facts, and D.L.’s counsel referred to the
object as a “gun” when cross-examining Officer Wheeler. Id. at 15. D.L. also identified
the item as a gun.
At the conclusion of the hearing, the juvenile court entered a true finding that D.L.
committed both offenses as charged but merged the offense of carrying a handgun
without a license into the dangerous possession of a firearm finding. D.L. now appeals.
3
DISCUSSION AND DECISION
When the State seeks to have a juvenile adjudicated a delinquent for committing
an act that would be a crime if committed by an adult, the State must prove every element
of that offense beyond a reasonable doubt. J.S. v. State, 843 N.E.2d 1013, 1016 (Ind. Ct.
App. 2006). On appeal, we will consider only the evidence and reasonable inferences
that support the judgment. Id. Additionally, we will not reweigh the evidence or judge
the credibility of the witnesses. Id.In determining whether the adjudication must be set aside because the State
allegedly failed to prove that the handgun Officer Wheeler recovered was a firearm under
the statutory definition of that term, we note that pursuant to Indiana Code section 35-47-
1-5, a “firearm means any weapon: (1) that is: (A) capable of expelling; or (B) designed
to expel; or (2) that may readily be converted to expel; a projectile by means of an
explosion.”
As discussed above, Officer Wheeler testified that he recovered a handgun after
observing D.L. kick it under a seat. Although the gun was not admitted into evidence, it
was established that Officer Wheeler was a twenty-three-year veteran of the IMPD. Tr.
p. 4. He was required to carry a handgun and be proficient with it. That said, it was
reasonable for the juvenile court to infer that Officer Wheeler could identify a firearm as
defined in the statute. See Ind. Code § 35-47-1-6 (defining a handgun as any firearm
designed or adapted to be aimed and fired from one hand or any firearm under a certain
4
barrel length or overall length). Moreover, none of the witnesses referred to the object as
anything other than a gun or a handgun.
In sum, the State presented sufficient evidence to determine that D.L. committed
dangerous possession of a firearm, a class A misdemeanor if committed by an adult.
The judgment of the juvenile court is affirmed.
MAY, J., and MATHIAS, J., concur.
5