Adam Sims v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Aug 20 2020, 8:27 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark D. Altenhof Curtis T. Hill, Jr.
Elkhart, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Adam Sims, August 20, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2932
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Kristine A. Osterday,
Appellee-Plaintiff. Judge
Trial Court Cause No.
20D01-1909-F5-216
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2932 | August 20, 2020 Page 1 of 3
[1] Adam Sims (“Sims”) was convicted of Domestic Battery, as a Level 5 felony.1
Pursuant to Indiana Code Section 35-38-1-7.7, the trial court determined that
Sims had committed a crime of domestic violence and it advised Sims of the
consequences of that determination. In its oral advisement, the court stated in
pertinent part as follows: “I will make a domestic violence determination which
for you means that you may not possess firearms, ammunition or deadly
weapons.” Tr. Vol. 2 at 181 (emphasis added). In its subsequent written order,
the court advised Sims that he “shall lose the right to possess a firearm” and
that “possession of a firearm or ammunition may constitute a separate crime[.]”
App. Vol. 2 at 171. The written order does not mention “deadly weapons.”
[2] Sims now appeals. He acknowledges that “sufficient evidence exists to sustain
a conviction[], the sentence [is] not inappropriate, and no real substantive or
procedural issues exist.” Br. of Appellant at 4 n.1. Moreover, Sims does not
dispute that he is prohibited from possessing a firearm and ammunition due to
the trial court’s determination that he had committed a crime of domestic
violence.2 Rather, the focus of the appeal is whether the trial court erred by
orally advising that Sims was prohibited from possessing deadly weapons. Sims
1
Ind. Code § 35-42-2-1.3(a)(1), (c)(4)(A) (2018).
2
In stating the issue and summarizing his argument, Sims asserts that the court erred by advising that he
could not possess ammunition. However, Sims abandons this assertion in his argument section, focusing
only on deadly weapons. We therefore do not address the propriety of ammunition-related advisements.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2932 | August 20, 2020 Page 2 of 3
argues that the trial court misstated the consequences of its determination and
he asks that we remand so that the court “can properly advise him[.]” Id. at 7.
[3] The State agrees that the trial court orally misstated the law. According to the
State, the court’s “misstatement including deadly weapons as prohibited under
the domestic violence determination is harmless because that terminology was
not included in any of the trial court’s written orders.” Br. of Appellee at 8.
[4] Rather than remand or hold any error harmless, we elect to resolve the asserted
ambiguity. See Ind. Appellate Rule 66(C)(1) (permitting this Court to grant
“any . . . appropriate relief”). We hereby advise Sims that, although a court’s
domestic-violence determination results in a prohibition on possessing a
firearm, see, e.g., I.C. § 35-47-4-7(a)—and a firearm is included in the statutory
definition of “deadly weapon,” see I.C. § 35-31.5-2-86(a)(1)—the determination
does not result in a prohibition on possessing other deadly weapons. Therefore,
Sims is bound by the terms of the written order, which we affirm in all respects.
Vaidik, J., and Baker, S.J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2932 | August 20, 2020 Page 3 of 3