MEMORANDUM DECISION                                                     Jun 30 2015, 8:09 am

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
Deborah Markisohn                                        Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Cynthia L. Ploughe
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Leon Payne,                                              June 30, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1410-CR-487
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Earl Cook,
Appellee-Plaintiff                                       Judge

                                                         Cause No. 49G07-1407-CM-034840




Najam, Judge.




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                                       Statement of the Case
[1]   Leon Payne appeals his conviction for carrying a handgun without a license, as

      a Class A misdemeanor, following a bench trial. He presents one issue for our

      review, namely, whether the State presented sufficient evidence to support his

      conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 9:00 a.m. on July 10, 2014, the Indianapolis Metropolitan

      Police Department (“IMPD”) dispatched Officer Scott Strietelmeier and several

      other IMPD officers to the 1600 block of Winfield Avenue in Indianapolis after

      a resident of that area saw several men standing in a driveway and loading a

      handgun. The resident was concerned because gunshots had been heard in the

      area the prior evening.


[4]   As the officers drove to the location of the call, Officer Strietelmeier saw several

      men on the porch of the residence matching the description provided to IMPD.

      Officer Strietelmeier observed one of the men, Payne, dropping a dark handgun

      on the ground. Payne picked up the gun and threw it into a line of trees

      alongside the house.


[5]   As Officer Strietelmeier and the other officers got out of their cars, they ordered

      the individuals to lie face-down on the ground, and the officers handcuffed

      them. Officer Strietelmeier and another officer searched the tree line next to the


      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-487| June 30, 2015   Page 2 of 6
      home and found two pistols. Payne did not have a license to carry a handgun.

      The officers asked Payne about the guns, but he declined to answer questions.

      Payne was subsequently notified of his Miranda rights and arrested.


[6]   On July 10, 2014, the State charged Payne with carrying a handgun without a

      license. The trial court held Payne’s bench trial on September 9 and 23, 2014.

      At the conclusion of the State’s case, Payne moved for judgment on the

      evidence. Payne contended that the State had failed to meet its burden of proof

      because the State had not shown that Payne did not have the consent of the

      homeowner to have a firearm at the home, a statutory exception to the offense

      of carrying a handgun without a license. Payne argued that the statutory

      exception at issue was not an affirmative defense to be proved by the defendant

      but, rather, was an element of the offense. Thus, he continued, the burden of

      proof rested with the State to negate the element.


[7]   In response to Payne’s argument, the trial court took the issue under

      advisement. Thereafter, the court concluded that the specific exception Payne

      sought to apply was an affirmative defense, the initial burden of proof for which

      rested with Payne. Accordingly, the trial court denied Payne’s motion for

      judgment on the evidence. Payne then testified on his own behalf. Payne

      stated that the firearms actually belonged to another man present at the home,

      who also was the person who had tossed the firearms into the bushes. At the

      conclusion of the trial, the court found Payne guilty as charged and sentenced

      him to 365 days in the Marion County Jail, with all but fifteen days suspended

      to probation. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-487| June 30, 2015   Page 3 of 6
                                     Discussion and Decision
[8]   Payne contends that the State failed to present sufficient evidence to convict

      him for carrying a handgun without a license. Our standard of review for

      sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109,

      111 (Ind. 2000).

              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence
              most favorable to the trial court ruling and affirm the conviction
              unless no reasonable fact-finder could find the elements of the
              crime proven beyond a reasonable doubt.


      Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)

      (internal quotation marks omitted).


[9]   Indiana’s carrying a handgun without a license statute, Indiana Code Section

      35-47-2-1, provides in relevant part:

              (a) Except as provided in subsection[] (b) . . . 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) . . . [A] person may carry a handgun without being licensed
              under this chapter to carry a handgun if:




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                                                      ***

                       (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.


[10]   Payne asserts that the State failed to prove in its case in chief that he “lacked the

       consent of the homeowner to carry a handgun on the private residential

       property.” Appellant’s Br. at 4. However, Payne acknowledges that our

       supreme court “has found that it is the defendant, not the State, who must

       prove that he came within one of the exceptions to the licensing requirement.”

       Id. at 6 (citing, among other cases, Moore v. State, 369 N.E.2d 628, 632 (Ind.

       1977)). Despite this, Payne asks this court to reconsider our supreme court’s

       precedent because “the ever increasing number” of exceptions to the carrying a

       handgun without a license statute makes it “more appropriate to require the

       State to disprove” a claimed exception “where such evidence is readily

       available and is easily obtained by the State.” Id. at 7.


[11]   But “[i]t is not this court’s role to reconsider or declare invalid decisions of our

       supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005).

       And our supreme court has already considered and rejected an argument

       identical to Payne’s. In particular, our supreme court has held that



       Court of Appeals of Indiana | Memorandum Decision 49A04-1410-CR-487| June 30, 2015   Page 5 of 6
                when the State has established that a defendant was found to be
                in possession of a handgun and not in possession of a license to
                carry it, then the burden shifts to the defendant to come forward
                with any proof that he in fact was licensed to carry the weapon or
                was [excepted] from the statute.


       Tonge v. State, 575 N.E.2d 269, 271 (Ind. 1991). Tonge precludes our

       consideration of Payne’s argument and is the controlling authority.1


[12]   The evidence presented by the State at Payne’s trial demonstrated that Payne

       carried a handgun without a license. As such, the burden shifted to Payne to

       establish that he either had a license to carry his weapon or that he fell within

       an exception to the statute. Payne did not do so but, instead, testified that the

       firearm did not belong to him. Payne, therefore, did not meet his burden, and

       we hold that the evidence was sufficient to support his conviction.


[13]   Affirmed.



       Baker, J., and Friedlander, J., concur.




       1
         We also note that, insofar as Payne attempts to rely on post-Tonge statutory amendments to avoid applying
       Tonge, his argument is not well taken. In its subsequent amendments to the license statute, our General
       Assembly has conspicuously not enacted legislation that would demonstrate a disagreement with our
       supreme court’s interpretation of the statute in Tonge. In such circumstances, the doctrine of legislative
       acquiescence—to say nothing of our obligation to simply follow binding supreme court authority—compels
       the conclusion that our supreme court’s interpretation in Tonge was correct. See Bailey v. State, 979 N.E.2d
       133, 141 (Ind. 2012). And, in any event, Tonge’s observation that “requir[ing] the State to eliminate all
       possibilities of lawful carrying of the weapon would be a waste of judicial time and effort” still holds true.
       575 N.E.2d at 271.

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