Robert Shelley v. State of Indiana (mem. dec.) ( 2015 )


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  • 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.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-82 | August 28, 2015   Page 1 of 5
    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:
    Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-82 | August 28, 2015   Page 2 of 5
    (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
    Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-82 | August 28, 2015   Page 3 of 5
    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
    Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-82 | August 28, 2015   Page 4 of 5
    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.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-82 | August 28, 2015   Page 5 of 5
    

Document Info

Docket Number: 49A02-1502-CR-82

Filed Date: 8/28/2015

Precedential Status: Precedential

Modified Date: 8/28/2015