MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
Aug 28 2015, 8:56 am
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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Shelley, August 28, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1502-CR-82
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G19-1409-CM-42069
Crone, Judge.
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Case Summary
[1] The trial court found Robert Shelley guilty of class A misdemeanor carrying a
handgun without a license. On appeal, Shelley contends that his conviction
should be overturned based on a statutory exception. We conclude that the
exception is irrelevant and affirm his conviction.
Facts and Procedural History
[2] The relevant facts most favorable to the trial court’s judgment are that on
August 31, 2014, Shelley transported a handgun in his vehicle to the
Indianapolis home of his friend, Jackson Coe, who was interested in purchasing
the handgun. Shelley parked in Coe’s driveway. Coe sat in the driver’s seat,
and Shelley sat in the front passenger’s seat. While Shelley was trying to
unload the handgun, it accidentally discharged and shot Coe in the thigh.
Emergency personnel were summoned, and Shelley moved his vehicle to make
room for the ambulance. Shelley gave a police officer permission to search his
vehicle. The officer found the handgun in a gun case and also found a spent
shell casing. A police detective determined that Shelley did not have a license
to carry the handgun. The State charged Shelley with class A misdemeanor
carrying a handgun. The trial court found Shelley guilty. Shelley now appeals.
Discussion and Decision
[3] Shelley was convicted of carrying a handgun without a license pursuant to
Indiana Code Section 35-47-2-1, which reads in pertinent part as follows:
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(a) Except as provided in subsections (b) and (c) … 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) [which is irrelevant here],
a person may carry a handgun without being licensed under this
chapter to carry a handgun if:
…
(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;
…
(3) the person carries the handgun in a vehicle that is owned,
leased, rented, or otherwise legally controlled by the person, if
the handgun is:
(A) unloaded;
(B) not readily accessible; and
(C) secured in a case[.]
[4] Shelley contends that his conviction should be overturned pursuant to
subparagraph (b)(2)(A) of the statute because he carried the handgun on Coe’s
property with Coe’s consent. The State contends that this provision is
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irrelevant because the evidence and reasonable inferences most favorable to the
trial court’s judgment indicate that Shelley carried a loaded handgun to Coe’s
house without a license in violation of subparagraph (b)(3)(A). We agree with
the State.
[5] On appeal, we do not reweigh evidence or judge witness credibility. Amos v.
State, 896 N.E.2d 1163, 1170 (Ind. Ct. App. 2008), trans. denied (2009). “We
will consider only the evidence most favorable to the judgment together with
the reasonable inferences to be drawn therefrom. We will affirm the conviction
if sufficient probative evidence exists from which the fact finder could find the
defendant guilty beyond a reasonable doubt.” Id. (citation omitted). “On
appeal, the circumstantial evidence is not required to overcome every
reasonable hypothesis of innocence; it is enough if an inference reasonably
tending to support the conviction can be drawn from the circumstantial
evidence.” Id. at 1171 (citation, quotation marks, and alteration omitted).
[6] Shelley complains that neither the State nor the trial court relied on this theory
at trial, but it is well settled that “[t]his court will affirm a conviction on any
basis fairly presented by the record.” Mesarosh v. State, 459 N.E.2d 426, 428
(Ind. Ct. App. 1984). The State points out that Shelley was charged in generic
terms. See Appellant’s App. at 13 (“Shelley did knowingly carry a handgun in a
vehicle or on or about his person, without being licensed as required by
law[.]”). The State’s closing argument was similarly generic, and the trial
court’s rationale for its guilty finding is cryptic. See Tr. at 41 (“The evidence
before the Court is not just that Mr. Shelley shot his friend in the leg but that he
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moved the vehicle with the gun in it away from the scene. Court finds the
evidence is sufficient to sustain a[] conviction for carrying a handgun without a
license.”). Shelley contends that “the evidence does not suggest the gun was
loaded when brought to Mr. Coe’s house” and that “[i]t is more likely the gun
had been loaded, maybe even fired before [Shelley] set about unloading it for
placement back in the case.” Appellant’s Reply Br. at 4. This is merely an
invitation to reweigh evidence and draw inferences in Shelley’s favor, which we
may not do. The evidence elicited at trial was minimal, but it would be
reasonable for a factfinder to infer that the handgun was loaded when Shelley
carried it to Coe’s house without a license. That was a violation of Indiana
Code Section 35-47-2-1, and therefore we affirm Shelley’s conviction.
[7] Affirmed.
May, J., and Bradford, J., concur.
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