MEMORANDUM DECISION Jun 30 2015, 8:09 am
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
Deborah Markisohn Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leon Payne, June 30, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1410-CR-487
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David Earl Cook,
Appellee-Plaintiff Judge
Cause No. 49G07-1407-CM-034840
Najam, Judge.
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Statement of the Case
[1] Leon Payne appeals his conviction for carrying a handgun without a license, as
a Class A misdemeanor, following a bench trial. He presents one issue for our
review, namely, whether the State presented sufficient evidence to support his
conviction.
[2] We affirm.
Facts and Procedural History
[3] At approximately 9:00 a.m. on July 10, 2014, the Indianapolis Metropolitan
Police Department (“IMPD”) dispatched Officer Scott Strietelmeier and several
other IMPD officers to the 1600 block of Winfield Avenue in Indianapolis after
a resident of that area saw several men standing in a driveway and loading a
handgun. The resident was concerned because gunshots had been heard in the
area the prior evening.
[4] As the officers drove to the location of the call, Officer Strietelmeier saw several
men on the porch of the residence matching the description provided to IMPD.
Officer Strietelmeier observed one of the men, Payne, dropping a dark handgun
on the ground. Payne picked up the gun and threw it into a line of trees
alongside the house.
[5] As Officer Strietelmeier and the other officers got out of their cars, they ordered
the individuals to lie face-down on the ground, and the officers handcuffed
them. Officer Strietelmeier and another officer searched the tree line next to the
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home and found two pistols. Payne did not have a license to carry a handgun.
The officers asked Payne about the guns, but he declined to answer questions.
Payne was subsequently notified of his Miranda rights and arrested.
[6] On July 10, 2014, the State charged Payne with carrying a handgun without a
license. The trial court held Payne’s bench trial on September 9 and 23, 2014.
At the conclusion of the State’s case, Payne moved for judgment on the
evidence. Payne contended that the State had failed to meet its burden of proof
because the State had not shown that Payne did not have the consent of the
homeowner to have a firearm at the home, a statutory exception to the offense
of carrying a handgun without a license. Payne argued that the statutory
exception at issue was not an affirmative defense to be proved by the defendant
but, rather, was an element of the offense. Thus, he continued, the burden of
proof rested with the State to negate the element.
[7] In response to Payne’s argument, the trial court took the issue under
advisement. Thereafter, the court concluded that the specific exception Payne
sought to apply was an affirmative defense, the initial burden of proof for which
rested with Payne. Accordingly, the trial court denied Payne’s motion for
judgment on the evidence. Payne then testified on his own behalf. Payne
stated that the firearms actually belonged to another man present at the home,
who also was the person who had tossed the firearms into the bushes. At the
conclusion of the trial, the court found Payne guilty as charged and sentenced
him to 365 days in the Marion County Jail, with all but fifteen days suspended
to probation. This appeal ensued.
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Discussion and Decision
[8] Payne contends that the State failed to present sufficient evidence to convict
him for carrying a handgun without a license. Our standard of review for
sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109,
111 (Ind. 2000).
In reviewing the sufficiency of the evidence, we examine only the
probative evidence and reasonable inferences that support the
verdict. We do not assess witness credibility, nor do we reweigh
the evidence to determine if it was sufficient to support a
conviction. Under our appellate system, those roles are reserved
for the finder of fact. Instead, we consider only the evidence
most favorable to the trial court ruling and affirm the conviction
unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.
Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)
(internal quotation marks omitted).
[9] Indiana’s carrying a handgun without a license statute, Indiana Code Section
35-47-2-1, provides in relevant part:
(a) Except as provided in subsection[] (b) . . . 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) . . . [A] person may carry a handgun without being licensed
under this chapter to carry a handgun if:
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***
(2) the person carries the handgun on or about the person’s
body while lawfully present in or on property that is
owned, leased, rented, or otherwise legally controlled by
another person, if the person:
(A) has the consent of the owner, renter, lessor, or
person who legally controls the property to have the
handgun on the premises.
[10] Payne asserts that the State failed to prove in its case in chief that he “lacked the
consent of the homeowner to carry a handgun on the private residential
property.” Appellant’s Br. at 4. However, Payne acknowledges that our
supreme court “has found that it is the defendant, not the State, who must
prove that he came within one of the exceptions to the licensing requirement.”
Id. at 6 (citing, among other cases, Moore v. State, 369 N.E.2d 628, 632 (Ind.
1977)). Despite this, Payne asks this court to reconsider our supreme court’s
precedent because “the ever increasing number” of exceptions to the carrying a
handgun without a license statute makes it “more appropriate to require the
State to disprove” a claimed exception “where such evidence is readily
available and is easily obtained by the State.” Id. at 7.
[11] But “[i]t is not this court’s role to reconsider or declare invalid decisions of our
supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).
And our supreme court has already considered and rejected an argument
identical to Payne’s. In particular, our supreme court has held that
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when the State has established that a defendant was found to be
in possession of a handgun and not in possession of a license to
carry it, then the burden shifts to the defendant to come forward
with any proof that he in fact was licensed to carry the weapon or
was [excepted] from the statute.
Tonge v. State, 575 N.E.2d 269, 271 (Ind. 1991). Tonge precludes our
consideration of Payne’s argument and is the controlling authority.1
[12] The evidence presented by the State at Payne’s trial demonstrated that Payne
carried a handgun without a license. As such, the burden shifted to Payne to
establish that he either had a license to carry his weapon or that he fell within
an exception to the statute. Payne did not do so but, instead, testified that the
firearm did not belong to him. Payne, therefore, did not meet his burden, and
we hold that the evidence was sufficient to support his conviction.
[13] Affirmed.
Baker, J., and Friedlander, J., concur.
1
We also note that, insofar as Payne attempts to rely on post-Tonge statutory amendments to avoid applying
Tonge, his argument is not well taken. In its subsequent amendments to the license statute, our General
Assembly has conspicuously not enacted legislation that would demonstrate a disagreement with our
supreme court’s interpretation of the statute in Tonge. In such circumstances, the doctrine of legislative
acquiescence—to say nothing of our obligation to simply follow binding supreme court authority—compels
the conclusion that our supreme court’s interpretation in Tonge was correct. See Bailey v. State, 979 N.E.2d
133, 141 (Ind. 2012). And, in any event, Tonge’s observation that “requir[ing] the State to eliminate all
possibilities of lawful carrying of the weapon would be a waste of judicial time and effort” still holds true.
575 N.E.2d at 271.
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