Pursuant to Ind.Appellate Rule 65(D), 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:

DARREN BEDWELL                                  GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                         Dec 12 2012, 9:28 am

                              IN THE                                             CLERK
                                                                               of the supreme court,

                    COURT OF APPEALS OF INDIANA                                court of appeals and
                                                                                      tax court




EARL McCLENDON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A04-1206-CR-282
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Barbara A. Collins, Judge
                        The Honorable Deborah Shook, Magistrate
                           Cause No. 49F08-1110-CM-074190


                                    December 12, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Earl McClendon (McClendon), appeals the trial court’s

denial of his motion requesting the return of his firearm.

       We reverse and remand with instructions.

                                          ISSUE

       McClendon raises four issues on appeal, which we consolidate and restate as the

following single issue: Whether the trial court abused its discretion when it denied his

motion requesting the return of his firearm.

                        FACTS AND PROCEDURAL HISTORY

       On October 15, 2011, Indianapolis Metropolitan Police Department Officer

Timothy Elliot (Officer Elliot) was traveling on 42nd Street in Indianapolis, Indiana, when

a Chevy Malibu vehicle approaching from the opposite direction traveled left of the

center lane and almost struck his patrol car. Both he and another officer on the road had

to perform evasive maneuvers to avoid contact with the vehicle. The Officers detained

the driver of the vehicle, McClendon, and transported him to the Indianapolis Police

Department.    At the Department, a certified chemical test operator administered a

chemical test to McClendon and determined that he had an alcohol concentration

equivalent (ACE) of 0.17 grams of alcohol per two hundred ten liters of breath.

Subsequently, the Officers learned that McClendon’s license had previously been

suspended.


                                               2
       On October 16, 2011, the State filed an Information charging McClendon with

Count I, operating a vehicle while intoxicated endangering a person, a Class A

misdemeanor, Ind. Code § 9-30-5-2(b); Count II, operating a vehicle while intoxicated

with an ACE of 0.15 or above, a Class A misdemeanor, I.C. § 9-30-5-1(b); and Count III,

driving while suspended, a Class A misdemeanor, I.C. § 9-24-19-2. On December 5,

2011, the State moved to amend the Information by adding Count IV, resisting law

enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. In its motion to amend the

Information, the State alleged that McClendon had put his hand on his firearm and

resisted the Officers by refusing to place his hands on the vehicle prior to his arrest. The

trial court granted the motion to amend the Information.

       On May 9, 2012, McClendon pled guilty pursuant to a written plea agreement to

Counts II and IV. In exchange, the State dismissed Counts I and III. That same day, the

trial court held a hearing, at which it accepted the plea agreement and sentenced

McClendon to 365 days on each Count, with the sentences to be served concurrently and

363 days suspended to probation.         After the sentencing portion of the hearing,

McClendon requested the return of his firearm, which had been confiscated pursuant to

his arrest. The trial court heard testimony by Officer Elliot, who testified that he had

ordered McClendon to place his hands on top of the car and that McClendon had instead

put his hands on his firearm. At the conclusion of the hearing, the trial court ordered the

firearm destroyed. The trial court granted McClendon’s request to stay the destruction

order pending appeal.

                                             3
       McClendon now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       McClendon argues on appeal that the trial court abused its discretion when it

denied his motion requesting the return of his firearm. He asserts that the trial court’s

decision violates I.C. § 35-47-3-2(b), which requires the trial court to return confiscated

firearms following the final disposition of a cause. In response, the State argues that the

trial court’s decision was proper because: (1) McClendon was convicted for the misuse

of a firearm; and (2) McClendon is an alcohol abuser and is thus no longer entitled to

possess the firearm.

       When we review the denial of a motion for the return of property, we will affirm

unless the decision is clearly erroneous and cannot be sustained on any legal theory

supported by the evidence. Williams v. State, 952 N.E.2d 317, 319 (Ind. Ct. App. 2011).

Statutes that relate to search and seizure must be strictly construed in favor of the

constitutional right of the people. Id. The court, once its need for the property has

terminated, has both the jurisdiction and the duty to return seized property. Id.

       The return of McClendon’s handgun is governed by I.C. § 35-47-3-2(b), which

provides:

       Firearms shall be returned to the rightful owner at once following final
       disposition of the cause if a return has not already occurred under the terms
       of I.C. § 35-33-5. . . . However, nothing in this chapter shall be construed
       as requiring the return of firearms to rightful owners who have been
       convicted for the misuse of firearms.



                                             4
The State asserts that the trial court should not return the firearm because

McClendon falls under the exception to section 35-47-3-2(b) for rightful owners

who have been convicted for the misuse of firearms. In response, McClendon

argues that his use of his firearm was not part of the factual basis for his plea

agreement and that he never admitted to touching his firearm. Accordingly, he

argues, he was not “convicted” for the “misuse of firearms.” We agree with

McClendon as none of the evidence underlying his conviction supports the State’s

contention that he misused his firearm.

       Specifically, at the hearing, the State established the factual basis for McClendon’s

plea as follows:

       As to Count 4, on or about October 15, 2011 in Marion County, State of
       Indiana, the following named defendant, [McClendon], did knowingly and
       forcibly resist, obstruct or interfere with Timothy Elliott, a law enforcement
       officer with the Indianapolis Metropolitan Police Department, while the
       [O]fficer was lawfully engage[d] in the execution of his duties as a law
       enforcement officer.

(Transcript pp. 5-6). McClendon admitted to the veracity of these allegations, but neither

the State nor McClendon made any references to McClendon’s firearm.              The State

contends that although the factual basis did not provide any evidence that McClendon’s

conviction involved the misuse of his firearm, both the probable cause affidavit and the

State’s motion to amend the Information alleged that McClendon touched his firearm

while resisting law enforcement. However, we have previously noted that, absent a

defendant’s admission of the veracity of the contents of a probable cause affidavit or


                                             5
Information, both are “mere accusations against a defendant and no evidence whatsoever

of his guilt.” Anderson v. State, 396 N.E.2d 960, 962 (Ind. Ct. App. 1979); see also Toan

v. State, 691 N.E.2d 477, 481 (Ind. Ct. App. 1998) (noting that a factual basis can be

established by a reading of the Information and an admission by the defendant that the

allegations are true). Accordingly, we will not find that the probable cause affidavit and

Information provided evidence that McClendon misused his firearm.

       In addition, while the trial court heard testimony from Officer Elliot concerning

the firearm, it only did so after it had accepted McClendon’s guilty plea and sentenced

him. Thus, we cannot find that McClendon’s conviction was founded on Officer Elliot’s

testimony. The plain language of I.C. § 35-47-3-2(b) states that a trial court is not

required to return a firearm to a rightful owner who has been “convicted for the misuse of

firearms.” See I.C. § 35-47-3-2(b) (emphasis added). Because we cannot find any

evidence in the record that McClendon admitted to misusing a firearm as part of his

guilty plea and conviction, we conclude that he was not convicted for the misuse of a

firearm.

       Alternatively, the State argues that the trial court’s decision to deny McClendon’s

motion was proper because he was an alcohol abuser and thus no longer entitled to

possess the firearm. Pursuant to I.C. § 35-47-2-7(b), “[i]t is unlawful for a person to sell,

give, or in any manner transfer the ownership or possession of a handgun to another

person who the person has reasonable cause to believe: . . . (3) is an alcohol abuser[].”

Under the Indiana Code, an “alcohol abuser” is “an individual who has had two (2) or

                                             6
more alcohol related offenses, any one (1) of which resulted in conviction by a court or

treatment in an alcohol abuse facility within three (3) years prior to the date of the

application.” I.C. § 35-47-1-2. The State alleges that between McClendon’s conviction

for operating a vehicle while intoxicated in the instant case and a prior conviction for

public intoxication, McClendon has had two or more alcohol related offense.

        We disagree with the State’s contention as the State did not prove that McClendon

has a prior alcohol related offense. During the hearing, the State told the trial court:

“[McClendon] does have a public intoxication arrest on his record which he was also, the

arrest was actually for failure to stop after an accident, I believe. There’s also a public

intoxication arrest on that.” (Tr. p. 11). However, the State made this statement during

its argument to the trial court and did not actually submit any evidence of the alleged

arrest. Moreover, the State’s use of the phrase “I believe,” does not convince us that the

State’s statements accurately reflect McClendon’s criminal history. (Tr. p. 11).

        In sum, we find that the State did not prove that McClendon misused a

firearm for purposes of I.C. § 35-47-3-2(b) or is an alcohol abuser for purposes of

I.C. § 35-47-2-7(b). Accordingly, we conclude that the trial court abused its

discretion and was instead required to return McClendon’s firearm as stated in I.C.

§ 35-47-3-2(b). We reverse the trial court’s decision and remand with instructions

to return McClendon’s firearm.1


1
 Because we find that the trial court abused its discretion under I.C. § 35-47-3-2(b), we will not address
McClendon’s remaining claims.

                                                     7
                                     CONCLUSION

       Based on the foregoing, we conclude that the trial court abused its discretion in

denying McClendon’s motion requesting the return of his firearm. We remand with

instructions for the trial court to return McClendon’s firearm.

       Reversed and remanded with instructions.

BAKER, J. and BARNES, J. concur




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