MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Dec 19 2017, 10:24 am

regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cleetus Nickson,                                        December 19, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1707-CR-1569
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Linda E. Brown,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G10-1701-CM-3276



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017        Page 1 of 8
[1]   Cleetus Nickson appeals his conviction for carrying a handgun without a

      license as a class A misdemeanor. He raises one issue which we revise and

      restate as whether the evidence is sufficient to sustain his conviction. We

      affirm.


                                      Facts and Procedural History

[2]   On January 24, 2017, Indianapolis Metropolitan Police Officer Matt Minnis

      observed Nickson driving a vehicle and following the car in front of him very

      closely. Officer Minnis caught up to Nickson’s vehicle, observed that his

      license plate had a 2016 sticker, determined that Nickson was speeding, and

      initiated a traffic stop because the plate was showing expired and Nickson was

      speeding.


[3]   As Officer Minnis approached the passenger side, he observed Nickson reach

      around with his right hand to behind the passenger seat and then immediately

      bring it back to his lap area. Officer Minnis pulled his flashlight out and shined

      it through the passenger side, and saw a cloth gun holster in Nickson’s lap.

      Officer Minnis requested back-up and told Nickson why he had pulled him

      over.


[4]   After Officer Angelika Matuszczyk arrived at the scene, Officer Minnis asked

      for Nickson’s license, Nickson gave him his license and a gun permit, and

      Officer Minnis went to his vehicle. Officer Matuszczyk shined her flashlight in

      the back of Nickson’s vehicle, observed a handgun on the floorboard behind the

      passenger’s seat, and asked the passenger to step out of the vehicle.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017   Page 2 of 8
[5]   Officer Minnis performed a BMV check on Nickson which showed that

      Nickson was a valid driver but had a revoked handgun permit. Officer Minnis

      read Nickson his Miranda rights, and he acknowledged that he understood

      them. Officer Minnis informed another officer that the BMV check led him to

      discover that Nickson had a revoked handgun permit, and Nickson said, “Well

      I said the gun permit might have been revoked.” Transcript at 10.


[6]   At some point, Officer Craig Solomon, a firearm liaison, arrived on the scene.

      Officer Solomon read Nickson his Miranda rights, and Nickson stated that he

      understood. Nickson told Officer Solomon that it was his gun, identified it by

      the make and caliber, told him where he purchased it, the purchase price, and

      that he had placed it on the rear floorboard of the car. Nickson also made

      “some mention of a restraining order involving his ex-wife.” Id. at 27.


[7]   On January 25, 2017, the State charged Nickson with carrying a handgun

      without a license as a class A misdemeanor. On June 23, 2017, the court held a

      bench trial. Officers Minnis, Matuszczyk, and Solomon testified. After the

      State rested, Nickson’s counsel moved for an involuntary dismissal and argued

      that the State had not proven that Nickson had carried a handgun knowingly

      without a valid handgun permit, and the court denied the motion.


[8]   Nickson then testified that he did not know that he had the gun in his car, that

      he normally kept the gun on him, and “that’s why my holster was in the car.”

      Id. at 45. He testified that he did not know whether his handgun permit had

      been revoked, he had never received any documentation stating that his


      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017   Page 3 of 8
      handgun might be revoked, and that he believed his license was valid. On

      cross-examination, Nickson testified that he received a protective order from his

      ex-wife and that he read that order. He stated that he never told Officer

      Solomon that the gun was his or that he placed it in the car. He also testified

      his protective order expired in 2015, that he thought he could carry after the

      protective order expired, and that he never made the statement that his permit

      might be revoked. When asked if he went through a process to have his gun

      license restored, Nickson answered: “Uh, I didn’t know that I had to.” Id. at

      48. The court found Nickson guilty as charged and sentenced him to 365 days

      with 361 days suspended.


                                                  Discussion

[9]   The issue is whether the evidence is sufficient to sustain Nickson’s conviction

      for carrying a handgun without a license as a class A misdemeanor. When

      reviewing the sufficiency of the evidence to support a conviction, we must

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

      witness credibility or reweigh the evidence. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

      unless no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt. Id. It is not necessary that the evidence overcome

      every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017   Page 4 of 8
[10]   At the time of the offense, Ind. Code § 35-47-2-1 provided in part that “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” and that “[a]

       person who knowingly or intentionally violates this section commits a Class A

       misdemeanor.”1 The Indiana Supreme Court has held that, “once the State has

       established that the defendant carried a handgun on or about his person, away

       from his residence or place of business, the burden then shifts to the defendant

       to demonstrate that he possessed a valid license.” Harris v. State, 716 N.E.2d

       406, 412 (Ind. 1999). See also Wilson v. State, 39 N.E.3d 705, 717 (Ind. Ct. App.

       2015) (“Once the State demonstrates that a defendant had possession of a

       handgun on his body or in a vehicle, it then becomes the defendant’s burden to

       demonstrate that he had a valid license to carry the handgun.”) (citing

       Armstrong v. State, 742 N.E.2d 972, 977 (Ind. Ct. App. 2001)), trans. denied.

       Proof that the defendant had a license is an exception to the offense, and the

       burden is on the defendant to prove he possessed a valid license. Harris, 716

       N.E.2d at 411. “Further, Ind. Code § 35-47-2-24 places the burden on the

       defendant to prove he or she has a license or was exempt from the statute.” 2 Id.




       1
           Subsequently amended by Pub. L. No. 221-2017, § 1 (eff. July 1, 2017).
       2
           Ind. Code § 35-47-2-24 provides:

                  (a) In an information or indictment brought for the enforcement of any provision of this
                      chapter, it is not necessary to negate any exemption specified under this chapter, or to
                      allege the absence of a license required under this chapter. The burden of proof is on
                      the defendant to prove that he is exempt under section 2 of this chapter, or that he has
                      a license as required under this chapter.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017              Page 5 of 8
[11]   Nickson acknowledges that the gun was found on the floor of the backseat of

       his vehicle and that he identified the gun as belonging to him. He argues that

       he denied knowledge of the gun’s presence in the car and asserts that he

       believed he had a valid permit for the gun. He asserts he provided a “lifetime”

       gun permit to Officer Minnis and that there was insufficient evidence to

       demonstrate that his permit had been revoked. Appellant’s Brief at 8. He

       contends that no certified record was submitted to show a revocation of the

       permit or when such revocation occurred. The State argues that Nickson failed

       to meet his burden to show that he had a valid license at the time he was

       carrying the handgun. It also contends that the evidence established that his

       license was revoked and that he was aware it was invalid at the time he carried

       a firearm in his vehicle.


[12]   To the extent Nickson argues that he denied knowledge of the gun’s presence in

       the car, the record reveals that Officer Minnis testified that he observed Nickson

       reach around with his right hand to behind the passenger seat and then

       immediately bring it back to his lap area and that he saw a cloth gun holster in

       Nickson’s lap. Officer Matuszczyk testified that she observed a handgun on the

       floorboard behind the passenger’s seat. Further, Officer Solomon testified that

       Nickson told him that he had placed the gun on the rear floorboard of the car.




               (b) Whenever a person who has been arrested or charged with a violation of section 1 of
                   this chapter presents a valid license to the prosecuting attorney or establishes that he is
                   exempt under section 2 of this chapter, any prosecution for a violation of section 1 of
                   this chapter shall be dismissed immediately, and all records of an arrest or proceedings
                   following arrest shall be destroyed immediately.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017             Page 6 of 8
[13]   With respect to Nickson’s argument that he believed his gun permit was valid,

       we observe that, when asked what his BMV check showed, Officer Minnis

       answered: “Uh, that he was a valid driver I believe, but that he had a revoked

       handgun permit.” Transcript at 7. When asked to explain the process for

       finding out that he had a revoked handgun permit, Officer Minnis stated:


               Uh, when you run someone’s name in our system, if they’ve ever
               had one (1), a handgun permit that is, or had one (1) revoked, it
               will show up; and in this case it showed that he had had one (1)
               originally approved, and that it had been revoked at a later time.


       Id. Officer Minnis also testified that he heard Nickson state: “Well I said the

       gun permit might have been revoked.” Id. at 10. On cross-examination,

       Nickson’s counsel stated: “Uh, now you indicated on direct that he had made a

       comment that – oh shit, that’s right it might have got revoked.” Id. at 16.

       Officer Minnis answered: “Correct.” Id.


[14]   Under the circumstances, we conclude that the State presented evidence of a

       probative nature from which a reasonable trier of fact could have determined

       beyond a reasonable doubt that Nickson carried a handgun without a license

       and we cannot say that Nickson met his burden to demonstrate that he

       possessed a valid license.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Nickson’s conviction.


[16]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017   Page 7 of 8
Baker, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1707-CR-1569 | December 19, 2017   Page 8 of 8
