ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Eugene C. Hollander Steve Carter
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Timothy W. Beam
Deputy Attorney General
Indianapolis, Indiana
In The
INDIANA SUPREME COURT
JIMMY ROBERTSON, ) Supreme Court No.
Defendant-Appellant, ) 49S02-0103-CR-157
)
v. )
) Court of Appeals No.
STATE OF INDIANA, ) 49A02-0006-CR-383
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard E. Sallee, Judge
Cause No. 49F10-9910-CM-188439
________________________________________________
On Petition to Transfer
March 27, 2002
DICKSON, Justice
The defendant, Jimmy Robertson, was convicted in a bench trial of
carrying a handgun without a license as a class A misdemeanor[1] for the
possession of a weapon in the common hall outside the door to his
apartment. Considering the area immediately outside a person's apartment
to be part of his dwelling, and that it is thus permissible to possess an
unlicensed handgun in this area, the Court of Appeals reversed. Robertson
v. State, 740 N.E.2d 574 (Ind. Ct. App. 2000). We granted transfer, 753
N.E.2d 7 (Ind. 2001), and now affirm the trial court, concluding that this
interpretation of the statute is incorrect.
The defendant's single claim on appeal is that the evidence was not
sufficient to support his conviction. Arguing that the charged offense
requires proof that he was not in his dwelling or on his property, the
defendant asserts that the place where he was arrested was part of his
dwelling.
In reviewing a claim of insufficient evidence, we will affirm the
conviction unless, considering only the evidence and reasonable inferences
favorable to the judgment, and neither reweighing the evidence nor judging
the credibility of the witnesses, we conclude that no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable
doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000); Webster v.
State, 699 N.E.2d 266, 268 (Ind. 1998); Hodge v. State, 688 N.E.2d 1246,
1247-48 (Ind. 1997).
Applying this standard, the evidence shows that a Marion County Deputy
Sheriff was dispatched to the defendant's Indianapolis apartment to
investigate a domestic disturbance involving a male and female, with the
male wearing a tan shirt and dark pants and possibly armed with a weapon.
Upon arrival at the apartment building, the officer walked into the
building and entered the common hallway serving four apartments, two
downstairs and two upstairs. He went up the stairs and could hear yelling
coming from the defendant's second floor apartment. As the officer stood
at the top of the stairs in the common hallway balcony area waiting for a
backup officer to arrive, the apartment door flew open and the defendant,
who matched the description provided to the officer, came out of the
apartment and took two or three steps into the common hallway area. The
officer stopped him and patted him down in the hallway, finding a fully
loaded handgun in the front pocket of his trousers. The defendant admitted
that he did not have a license for the gun.
The statute defining the charged offense provides:
[A] person shall not carry a handgun in any vehicle or on or about his
person, except in his dwelling, on his property or fixed place of
business, without a license issued under this chapter being in his
possession.
Ind.Code § 35-47-2-1. The defendant claims that his place of arrest fits
within the statutory definition of dwelling as "a building, structure, or
other enclosed space, permanent or temporary, movable or fixed, that is a
person's home or place of lodging." Ind.Code §35-41-1-10. He also argues
that common areas such as enclosed hallways and stairways of an apartment
house have been held not to be public places.
The issue in this case is not whether the common hallway where the
defendant was arrested was a public place, but whether it was the
defendant's dwelling or property. The defendant does not present cogent
argument that it was his property, but does assert that it was his
dwelling. Observing that people treat "the area immediately outside of his
or her apartment home as his or her curtilage," the Court of Appeals
concluded that such area was part of the person's dwelling, but expressly
declined to decide the exact parameters of what this was to include.
Robertson, 740 N.E.2d at 576.
The doctrine of curtilage is not applicable here. In Indiana Code §
35-41-3-2(b) & (c), which protects a person from criminal liability when
force is used to protect their "dwelling or curtilage" (emphasis added),
the concept of curtilage is treated as separate and distinct from dwelling.
In the statute proscribing carrying a handgun without a license, however,
a person's dwelling is designated as an exception without also including
curtilage. In addition, while "dwelling" is defined as "a person's home or
place of lodging," Ind.Code § 35-41-1-10, the legislature cannot have
intended to permit the carrying of unlicensed handguns in all apartment
common areas that a person may claim as part of their place of lodging.
This construction could arguably extend the dwelling exception to include
all the common halls in an apartment building, its entryways, elevators,
parking garages, and common facilities provided for tenant laundry, mail,
and other conveniences.
To foster application of the statute in a fair, consistent, and
predictable manner, consistent with legislative intent, we hold that
"dwelling" does not include the common areas serving a person's apartment.
Considering only the evidence and reasonable inferences favorable to
the judgment, and neither reweighing the evidence nor judging the
credibility of the witnesses, we conclude that the evidence was sufficient
to enable the trial court to find beyond a reasonable doubt that the
defendant was not in his dwelling when he was found to possess the
unlicensed handgun.
The judgment of the trial court is affirmed.
SHEPARD, C.J., and SULLIVAN, and BOEHM, JJ., concur. RUCKER, J.,
dissents with separate opinion.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EUGENE C. HOLLANDER STEVE CARTER
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
TIMOTHY W. BEAM
Deputy Attorney General
Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JIMMY ROBERTSON, )
)
Appellant-Defendant, ) Supreme Court Cause Number
) 49S02-0103-CR-157
v. )
) Court of Appeals Cause Number
STATE OF INDIANA, ) 49A02-0006-CR-383
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Richard E. Sallee, Judge
Cause No. 49F10-9910-CM-188439
ON PETITION TO TRANSFER
March 27, 2002
RUCKER, Justice, dissenting
I agree with the majority that the issue in this case is not whether a
common hallway is a public place. Having said that, it is clear that
Robertson was perfectly within his right to possess the handgun inside his
apartment. I am troubled that Robertson is transformed from a law-abiding
citizen one moment into a misdemeanant the next by merely stepping a few
feet outside his doorway while the handgun is still in his possession.
From my perspective the Court of Appeals has the better view: “the area
immediately outside of a person’s apartment is a part of that person’s
dwelling.” Robertson v. State, 740 N.E.2d 574, 576 (Ind. Ct. App. 2000).
I therefore dissent and would reverse the judgment of the trial court.
-----------------------
[1] Ind.Code § 35-47-2-1.