                                                                             FILED
                                                                        Jan 09 2018, 5:48 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                        ATTORNEYS FOR APPELLEE
Joel M. Schumm                                                Curtis T. Hill, Jr.
Indiana University Robert H. McKinney                         Attorney General of Indiana
School of Law                                                 Ellen H. Meilaender
Indianapolis, Indiana                                         Supervising Deputy Attorney
Seth M. Smoker                                                General
Certified Legal Intern                                        Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Wilder,                                                January 9, 2018
Appellant-Defendant,                                          Court of Appeals Case No.
                                                              49A02-1706-CR-1420
        v.                                                    Appeal from the Marion
                                                              Superior Court
State of Indiana,                                             The Honorable Peggy R. Hart,
Appellee-Plaintiff.                                           Magistrate
                                                              Trial Court Cause No.
                                                              49G10-1609-CM-37937



Bailey, Judge.




                                     Case Summary

Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                       Page 1 of 21
[1]   Robert Wilder (“Wilder”) appeals his conviction, following a jury trial, of

      battery resulting in bodily injury, as a Class A misdemeanor,1 and the term of

      his probation that prohibits him from possessing firearms. We affirm.



                                                     Issues
[2]   Wilder raises the following two issues on appeal:


                I.       Whether the detective’s testimony violated Indiana Rule of
                         Evidence 704(b) and its admission was fundamental error.


                II.      Whether the condition of probation which prohibits him
                         from possessing firearms during his probation period
                         violates his right to bear arms, as protected by the Second
                         Amendment to the United States Constitution and Article
                         1, § 32 of the Indiana Constitution.


                               Facts and Procedural History
[3]   Wilder owns and operates a pierogi food truck. Food truck operators must

      operate out of a commissary or licensed board of health kitchen, and Wilder’s

      commissary is on the south side of Indianapolis next to a bar and restaurant

      called The Tailgate, which is owned by Dennis Turpen (“Turpen”).


[4]   At approximately 12:30 p.m. on August 6, 2016, Wilder went to his

      commissary to pick up frozen pierogi. Wilder’s sixteen-year-old son was




      1
          Ind. Code § 35-42-2-1(d)(1).


      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018       Page 2 of 21
      driving Wilder’s vehicle, and Wilder’s friend, William Greuesser (“Greuesser”),

      was a passenger in the back seat of the vehicle. Turpen had parked his truck in

      an alley behind his restaurant—where there are no parking spaces—in order to

      unload supplies from his truck and take them into his restaurant. Although

      Turpen’s truck was not blocking the alley access, it was parked in such a

      manner that passing around his vehicle would be difficult. Wilder and Turpen

      had previously argued on several occasions about Turpen parking his car

      behind his restaurant. Believing his son, who was an inexperienced driver,

      would not be able to drive around Turpen’s truck, Wilder called out to Turpen

      to move his truck. Turpen responded that it would only take him a few minutes

      to unload his truck, and pointed out that there was room enough to drive

      around his truck.


[5]   Wilder became angry, yelled at Turpen, and then exited his vehicle and

      approached Turpen. An altercation ensued during which Wilder tackled

      Turpen and got Turpen face-down on the ground. Wilder knelt on top of

      Turpen and placed his forearm on the back of Turpen’s neck. William Camp

      (“Camp”), who was across the street from Turpen and Wilder at a strip mall,

      did not see how the altercation began but he did witness Wilder holding Turpen

      down on the ground and banging Turpen’s face onto the ground. Wilder then

      got up and went to Turpen’s truck, where he began throwing things out of the

      truck and onto the ground. Wilder then got into the driver’s seat of his own

      vehicle and sped away. Turpen sustained bleeding lacerations to his hands,

      arms, elbows, face and one knee. Wilder was not injured.


      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 3 of 21
[6]   Both Turpen and Camp independently called 9-1-1 to report the incident.

      Indianapolis Metropolitan Police Department (“IMPD”) Officer James Rusk

      (“Officer Rusk”) responded to the 9-1-1 calls. When he arrived at The Tailgate,

      he saw that Turpen had blood on his nose, hands, elbows, and knees. Camp

      approached Officer Rusk and informed him that he had witnessed the

      altercation. Officer Rusk interviewed both Turpen and Camp at the scene.


[7]   IMPD Detective Kevin Duley (“Det. Duley”) was assigned to investigate the

      incident further. As part of his investigation, Det. Duley interviewed Turpen

      five days after the incident and noticed that Turpen still had injuries on his nose

      and hands. Det. Duley also interviewed Camp regarding the incident. Det.

      Duley showed Camp an array of photographs, including one of Wilder, and

      Camp identified Wilder as the person whom he saw kneeling on top of Turpen

      and banging Turpen’s head on the ground on August 6.


[8]   The State charged Wilder with battery resulting in bodily injury as a Class A

      misdemeanor. At his May 15, 2017, jury trial, Wilder contended that he had

      acted in self-defense because Turpen had swung at him first. As part of that

      defense, and beginning in his opening statement, Wilder attacked the quality of

      the police investigation and, specifically, the fact that police never spoke to

      Wilder, his son, or Greuesser before filing charges. In his opening statement,

      Wilder’s attorney stated:


              The police investigation, which you will also learn today, uh,
              spoke to Turpen and Camp and that’s it, never talked to my
              client. If they had they would have found out that there was

      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 4 of 21
              another eye witness and you will hear from him today too. …
              And, if the police had investigated this case appropriately
              you’d—they’d know that there was reasonable doubt.


      Tr. Vol. II at 38-39. On cross-examination of Officer Rusk, Wilder’s attorney

      elicited testimony that Officer Rusk never interviewed Wilder, his son, or

      Greuesser, and that Officer Rusk did not take photographs at the scene, collect

      DNA evidence, inspect Turpen’s head for more injuries, call in an evidence

      technician, or check if there were surveillance videos at surrounding businesses

      that may have recorded the altercation.


[9]   Following Officer Rusk’s testimony, the State called Det. Duley to testify. He

      was the State’s final witness in its case-in-chief, and the prosecutor asked the

      detective why he never spoke to Wilder during his investigation. Det. Duley

      replied:


              I felt that the evidence was sufficient that a battery had occurred,
              and uh[,] in speaking with Mr. Camp[,] his testimony to me
              corroborated what the victim said. And, in my opinion, Mr.
              Camp did not have a dog in the fight. He would have been better
              off to just walk away from the whole thing. Um, so it, it played a
              lot or it waived [sic] heavily for me that he was willing to stick
              around and give testimony that backed up what the victim said.
              That being said[,] I also felt like this was a case that maybe
              needed to see its day in court, as opposed to me taking a
              statement and—it be tried in the Prosecutor’s Office so to speak.
              So[,] I submitted it to the Prosecutor for charging.


      Tr. Vol. II at 117.



      Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 5 of 21
[10]   On May 15, the jury found Wilder guilty as charged. At the June 5 sentencing

       hearing, the State requested a no-contact order. Wilder did not object to the

       issuance of a no-contact order, but he asked the court to remove from its terms

       the prohibition on possessing a firearm, as this case did not involve the use of

       any firearm. The trial court imposed a 365-day sentence, all suspended to

       probation except for time served. The court imposed standard conditions of

       probation which included a condition that Wilder “not possess a firearm,

       destructive device, or other dangerous weapon or live in a residence where there

       are such items.” App. Vol. II at 119. The court also imposed a no-contact order

       as a condition of probation, which included an order that Wilder “have no

       firearms, deadly weapons, or ammunition in his/her possession.” Id. at 30.

       This appeal ensued.



                                   Discussion and Decision
                              Indiana Rule of Evidence 704(b)
[11]   Wilder contends that Det. Duley’s testimony that he turned Wilder’s case over

       to the prosecutor without first interviewing Wilder because he “felt the evidence

       was sufficient that a battery had occurred,” Tr. Vol. II at 117, violated Indiana

       Rule of Evidence 704(b) and should have been stricken. As our Supreme Court

       has recently noted,


               [w]e review evidentiary rulings for abuse of discretion resulting in
               prejudicial error. Carpenter v. State, 786 N.E.2d 696, 702 (Ind.
               2003). A trial court abuses its discretion when its ruling is either
               clearly against the logic and effect of the facts and circumstances
       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 6 of 21
               before the court, or when the court misinterprets the law. Id. at
               703. To determine whether an error prejudiced a defendant, “we
               assess the probable impact the evidence had upon the jury in light
               of all of the other evidence that was properly presented.” Blount
               v. State, 22 N.E.3d 559, 564 (Ind. 2014). If the conviction is
               properly supported by other independent evidence of guilt, the
               error is harmless. Id.


       Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015).


[12]   Wilder failed to object at trial to the challenged testimony. A defendant must

       object to an alleged error to preserve the issue for appeal; issues raised for the

       first time on appeal are waived. See, e.g., Washington v. State, 808 N.E.2d 617,

       625 (Ind. 2004). The purpose of the contemporaneous objection requirement is

       to give the trial court a chance to avoid or correct the harmful error, thereby

       securing a fair and proper verdict. Clark v. State, 6 N.E.3d 992, 998 (Ind. Ct.

       App. 2014). “[A] trial court cannot be found to have erred as to an issue or

       argument that it never had an opportunity to consider.” Washington, 808

       N.E.2d at 625. Therefore, Wilder has waived the claim on review.


[13]   However, Wilder maintains that the admission of the challenged testimony was

       fundamental error. The fundamental error exception to waiver is extremely

       narrow and applies only when the error constitutes a blatant denial of basic due

       process principles that makes it impossible to receive a fair trial. See Ryan v.

       State, 9 N.E.3d 663, 668 (Ind. 2014). Thus, a matter rising to the level of

       fundamental error is a matter that the trial court had a sua sponte duty to correct.

       Id. “Fundamental error is meant to permit appellate courts a means to correct


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 7 of 21
       the most egregious and blatant trial errors that otherwise would have been

       procedurally barred, not to provide a second bite at the apple for defense

       counsel who ignorantly, carelessly, or strategically fail to preserve an error.” Id.


[14]   Wilder asserts that Det. Duley’s testimony that he “felt the evidence was

       sufficient that a battery had occurred” was the statement of a legal conclusion,

       in violation of Indiana Rule of Evidence 704(b). That rule precludes a witness

       from testifying “to opinions concerning intent, guilt, or innocence in a criminal

       case; the truth or falsity of allegations; whether a witness has testified truthfully;

       or legal conclusions.”


[15]   Even if Det. Duley’s challenged testimony was an otherwise improper legal

       conclusion or ultimate opinion of Wilder’s guilt,2 it was nevertheless admissible

       because Wilder “opened the door” to such testimony when he raised the issue

       of the sufficiency of the police investigation.


                Opening the door refers to the principle that where one party
                introduces evidence of a particular fact, the opposing party is
                entitled to introduce evidence in explanation or rebuttal thereof,
                even though the rebuttal evidence otherwise would have been
                inadmissible. See Clark v. State, 915 N.E.2d 126, 130, 131 (Ind.
                2009).




       2
         See, e.g., Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015) (holding a detective’s testimony that a
       “transaction for cocaine” had occurred was a declaration of an ultimate opinion of the defendant’s guilt, in
       violation of Rule 704(b)); Bradford v. State, 960 N.E.2d 871, 876 (Ind. Ct. App. 2012) (holding Department of
       Child Services caseworker’s testimony that she “substantiated sexual abuse, meaning our office feels that
       there was enough evidence to conclude that sexual abuse occurred,” was an improper opinion of the truth of
       the allegations, in violation of 704(b)).

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                       Page 8 of 21
       Sampson v. State, 38 N.E.3d 985, 992 n.4 (Ind. 2015). Evidence which opens the

       door “must leave the trier of fact with a false or misleading impression of the

       facts related.” Cameron v. State, 22 N.E.3d 588, 593 (Ind. Ct. App. 2014).

       When that happens, the State may introduce otherwise inadmissible evidence if

       it “is a fair response to evidence elicited by the defendant.” Id.


[16]   Here, Wilder “opened the door” for Det. Duley’s testimony by attacking, in

       both his opening statement and his cross-examination of Officer Rusk, the

       sufficiency of the police investigation and, more specifically, the State’s decision

       to bring charges against Wilder before police spoke with him and his witnesses.

       Wilder’s attorney’s opening remarks and cross-examination of Officer Rusk

       necessarily left the jury with the false impression that police must interview all

       witnesses before the State may file criminal charges. The State was entitled at

       that point to elicit testimony about why it brought charges against Wilder

       without first interviewing him, his son, or his friend who was in the car with

       him.3 The trial court did not commit fundamental error by failing to, sua sponte,

       exclude that testimony.4




       3
         For the same reason, the trial court did not err in allowing Det. Duley’s testimony that appears to vouch
       for the credibility of Camp as a witness. Again, it was Wilder who first introduced the idea that the police
       had not “investigated this case appropriately.” Tr. Vol. II at 38-39. Det. Duley’s testimony that he thought
       Camp’s non-biased account of the incident, together with the victim’s statement, was sufficient to charge
       Wilder with battery was in direct response to Wilder’s contention that the police failed to properly investigate
       the case when they did not interview Wilder or his witnesses. Thus, Wilder opened the door to Det.
       Dudley’s “vouching testimony” and it was admissible. See Sampson, 38 N.E.3d at 992.
       4
         Because we hold that Det. Duley’s challenged testimony was admissible, we do not address the State’s
       argument that any error was harmless.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                         Page 9 of 21
           Probation Condition Prohibiting Possession of Firearms
                                               Standard of Review

[17]   Wilder maintains that the condition of probation that prohibits him from

       possessing firearms during his probation period5 violates his right to bear arms,

       as protected by the Second Amendment to the United States Constitution and

       Article 1, Section 32 of the Indiana Constitution. Probation is a criminal

       sanction wherein a convicted defendant specifically agrees to accept conditions

       upon his behavior in lieu of imprisonment. See, e.g., Bratcher v. State, 999

       N.E.2d 864, 873 (Ind. Ct. App. 2013), trans. denied.


               A trial court enjoys broad discretion when determining the
               appropriate conditions of probation. Freije v. State, 709 N.E.2d
               323, 324 (Ind. 1999). This discretion is limited only by the
               principle that the conditions imposed must be reasonably related
               to the treatment of the defendant and the protection of public
               safety. Carswell v. State, 721 N.E.2d 1255, 1258 (Ind. Ct .App.
               1999). Where, as here, the defendant challenges a probationary
               condition on the basis that it is unduly intrusive on a
               constitutional right, we will evaluate that claim by balancing the
               following factors: (1) The purpose to be served by probation, (2)
               the extent to which constitutional rights enjoyed by law-abiding
               citizens should be enjoyed by probationers, and (3) the legitimate
               needs of law enforcement.




       5
         That condition is authorized by Indiana Code Section 35-38-2-2.3(a)(9). Wilder does not attack the
       constitutionality of the statute on its face, only as applied to him.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                    Page 10 of 21
       Smith v. State, 779 N.E.2d 111, 117 (Ind. Ct. App. 2002), trans. denied; see also

       Taylor v. State, 820 N.E.2d 756, 761 (Ind. Ct. App. 2005) (quotation and citation

       omitted) (“Convicted individuals do not enjoy the same constitutional

       protections as law-abiding citizens. In the context of these constitutional

       freedoms, a state action is valid if reasonably related to legitimate penological

       interests.”), trans. denied.


                              Purpose to Be Served by Probation Condition

[18]   The crime Wilder committed—battery resulting in bodily injury—was, by

       definition, a crime of violence. I.C. § 35-42-2-1(d)(1). The probation condition

       at issue here is meant to keep dangerous weapons out of the hands of those who

       have shown a propensity for violence, and that is a legitimate and important

       government purpose. See, e.g., United States v. Yancy, 621 F.3d 681, 683-84 (7th

       Cir. 2010) (noting the important government purpose of a federal law

       prohibiting unlawful users of, or addicts to, controlled substances from

       possessing firearms was “to keep guns out of the hands of presumptively risky

       people”); see also, Redington v. State, 992 N.E.2d 823, 833 (Ind. Ct. App. 2013)

       (holding a state statute had the legitimate government purposes of permitting

       seizure of firearms from individuals found to meet the statutory definition of

       “dangerous”), trans. denied.


[19]   The fact that Wilder’s violent crime did not involve use of a firearm is not

       dispositive; it is the propensity of the probationer toward violence that is

       relevant to the need to prohibit possession of dangerous weapons such as

       firearms. See, e.g., United States v. Muehlhausen, No. 1:12-CR-00102-TWP-
       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 11 of 21
       DML-51, 2013 WL 3043682, *4 (S.D. Ind. June 17, 2013) (holding the

       government had “a legitimate interest in keeping someone with [defendant]’s

       prior conduct history [of violent misdemeanors] from possessing firearms.”); cf.

       Carswell, 721 N.E.2d at 1265 (holding that a condition of probation prohibiting

       a convicted child molester from using drugs or alcohol was reasonable, even in

       the absence of evidence that drugs or alcohol played any part in his crimes,

       since drug possession is illegal and “[t]he propensity of alcohol to impair

       judgment and reduce inhibition is known”).


[20]   The legitimate and important purpose of the probation condition prohibiting

       possession of firearms, as applied to Wilder, is to keep dangerous weapons out

       of the hands of a probationer whose underlying crime has shown he has a

       propensity toward violence resulting in harm to others.


             Extent to which the Right to Bear Arms should be Afforded to Wilder

       I.      The Second Amendment


[21]   The Second Amendment states in its entirety: “A well regulated Militia, being

       necessary to the security of a free State, the right of the people to keep and bear

       Arms, shall not be infringed.” U.S. Const. amend. II. The United States

       Supreme Court has held that the “core protection” of the Second Amendment

       is “the right of law-abiding, responsible citizens to use arms in defense of hearth

       and home.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see also

       McDonald v. City of Chicago, 561 U.S. 742 (2010) (holding Second Amendment

       protections are applicable to the states). However, some categorical exclusions


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 12 of 21
       on firearm possession may be constitutional. See, e.g., United States v. Skoien,

       614 F.3d 638, 641 (7th Cir. 2010) (quoting Heller, 554 U.S. at 626-27)

       (“‘[N]othing in our opinion should be taken to cast doubt on longstanding

       prohibitions on the possession of firearms by felons and the mentally ill, or laws

       forbidding the carrying of firearms in sensitive places such as schools and

       government buildings, or laws imposing conditions and qualifications on the

       commercial sale of arms.’”), cert. denied.


[22]   The federal courts use a two-pronged approach when analyzing a Second

       Amendment challenge to a law: (1) Does the challenged law impose a burden

       on conduct falling within the scope of the Second Amendment’s guarantee? If

       not, the inquiry is complete. (2) If it does impose such a burden, does the law

       pass a heightened level of scrutiny? See, e.g., Ezell v. City of Chicago, 651 F.3d

       684, 703-04 (7th Cir. 2011), and cases cited therein. What level of scrutiny

       applies depends upon the severity of the burden on Second Amendment rights,

       although the scrutiny must, in any case, be stronger than rational basis review.

       Id. at 701, 708 (citing Heller, 554 U.S. at 628-29 & n.27).


               First, a severe burden on the core Second Amendment right of
               armed self-defense will require an extremely strong public-
               interest justification and a close fit between the government’s
               means and its end. Second, laws restricting activity lying closer
               to the margins of the Second Amendment right, laws that merely
               regulate rather than restrict, and modest burdens on the right
               may be more easily justified. How much more easily depends on
               the relative severity of the burden and its proximity to the core of
               the right.


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 13 of 21
       Id. at 708. This same analysis applies to categorical exclusions that are within

       the scope of the Second Amendment. See, e.g., United States v. Williams, 616

       F.3d 685, 692 (7th Cir. 2010), cert. denied.


[23]   Here, the state statute authorizing a prohibition on possession of firearms as a

       probation condition, generally, seems to allow a categorical ban on firearm

       possession by any probationer, regardless of the nature of the underlying crime.6

       I.C. § 35-38-2-2.3(a)(9). However, we do not decide whether such a categorical

       exclusion is constitutional, as Wilder challenges only the law as applied to him.

       As applied to Wilder, the law prohibits possession of firearms by a probationer

       who committed a violent crime—i.e., battery.


[24]   Since the probation condition burdens Wilder’s right to bear arms, we must

       determine what level of scrutiny to apply to that burden.7 In making this

       determination, we note that the prohibition on possession of firearms is not an

       indefinite one; rather, it applies only during the term of Wilder’s probation

       period, which was only 365 days. Thus, the condition is a more “modest

       burden” on Wilder’s right to bear arms. Ezell, 651 F.3d at 708. And it is not a




       6
          Such a categorical exclusion may be permissible, as both the United States Supreme Court and the Seventh
       Circuit have stated that “only law-abiding persons” enjoy individualized Second Amendment rights. Berron
       v. Illinois Concealed Carry Licensing Review Bd., 825 F.3d 843, 847 (7th Cir. 2016) (citing Heller, 554 U.S. at 626-
       28), cert. denied; see also Yancy, 621 F.3d at 684-85 (citations and quotation omitted) (“Whatever the pedigree
       of the rule against even nonviolent felons possessing weapons (which was codified in federal law in 1938),
       most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a
       virtuous citizenry and that, accordingly, the government could disarm unvirtuous citizens.”).
       7
        Neither party to this appeal has addressed the level of scrutiny to be applied to Wilder’s Second
       Amendment claim.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                            Page 14 of 21
       total ban on guns that applies to even law-abiding citizens. See Moore v.

       Madigan, 702 F.3d 933, 940 (7th Cir. 2012) (“[T]he state can prevail with less

       evidence when, as in Skoien, guns are forbidden to a class of persons who

       present a higher than average risk of misusing a gun.”). Therefore, we apply an

       intermediate level of scrutiny. Ezell, 651 F.3d at 708. Intermediate scrutiny

       means “the government has the burden of demonstrating that its objective is an

       important one and that its objective is advanced by means substantially related

       to that objective.” Williams, 616 F.3d at 692.


[25]   We have already noted that the government’s objective of keeping guns out of

       the hands of probationers who have been convicted of violent crimes is an

       important one. So, too, is the government’s goal of rehabilitating probationers.

       E.g., Carswell, 721 N.E.2d at 1258. And we hold that application of the

       probation condition to Wilder is substantially related to those important goals.

       Wilder was convicted of a violent crime that caused injury to another, thus

       showing he has a propensity toward violence. Therefore, the State’s goals of

       rehabilitating Wilder and preventing him, while on probation, from committing

       additional violence through the use of a deadly weapon is substantially

       furthered by the probation condition.


[26]   The Seventh Circuit has reached similar conclusions in similar cases. In United

       States v. Yancy, for example, the court upheld a law making it a felony for

       anyone “who is an unlawful user of or addict to any controlled substance” to

       possess a firearm. 621 F.3d at 682. This law applied even to those who had

       never before been convicted of a felony, a crime involving a firearm, or, indeed,

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 15 of 21
       any violent crime at all. The court held that, since “habitual drug users, like the

       mentally ill, are more likely to have difficulty exercising self-control, making it

       dangerous for them to possess deadly firearms,” the law was substantially

       related to the government’s important interest in “keep[ing] guns out of the

       hands of presumptively risky people.” Id. at 683-84. And, importantly, the ban

       on firearm possession was not indefinite; the defendant “could regain his right

       to possess a firearm simply by ending his drug abuse.” Id. at 687; see also Skoien,

       614 F.3d at 642 (“The belief underpinning [the federal law prohibiting gun

       possession by those convicted of domestic violence] is that people who have

       been convicted of violence once—toward a spouse, child, or domestic partner,

       no less—are likely to use violence again.”).


[27]   The temporary curtailment of Wilder’s right to bear arms is substantially related

       to the government’s important goal of keeping dangerous weapons out of the

       hands of probationers who have shown a propensity for violence. Therefore,

       the challenged probation condition, as applied to Wilder, does not violate the

       Second Amendment.


       II.     Article 1, Section 32


[28]   Wilder contends that the challenged probation condition, as applied to him,

       also violates Article 1, Section 32 of the Indiana Constitution, which states:

       “The people shall have a right to bear arms, for the defense of themselves and

       the State.” Claims under that provision are analyzed differently than Second

       Amendment claims. As we have most recently held, we apply both a rational


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 16 of 21
       basis review and a material burden analysis to such claims. Redington, 992

       N.E.2d at 832-35. That is, we first apply rational basis review to a restriction on

       firearms to determine if it is a valid exercise of “police power to promote health,

       safety, comfort, morals, and welfare of the public.” Id. at 832 (citing Price v.

       State, 622 N.E.2d 954, 959 (Ind. 1993)). If the restriction passes rational basis

       review, we proceed to determine whether it “materially burdens” a “core

       value.” Id. at 833.


                                               Rational Basis Review


[29]   The firearm law at issue in Redington was Indiana Code Section 35-47-14-1, et

       seq., which authorized the State to seize, pursuant to a warrant, firearms of a

       person who the State proved by clear and convincing evidence met the statutory

       definition of “dangerous.” Id. at 830-31. We held that law was “rationally

       calculated to advance” the State’s legitimate governmental purpose of

       prohibiting possession of firearms by those “dangerous” persons who “present a

       risk of personal injury to themselves or others.” Id. at 833. This was so even

       though the defendant had never been convicted of a crime and claimed not to

       have a mental illness, where the State had nevertheless proven that he was

       dangerous as defined by statute. Id.


[30]   Here, the challenged firearm restriction passes rational basis review for the

       same reasons it passed an intermediate level of scrutiny under the federal

       constitution. The State proved, beyond a reasonable doubt, that Wilder

       committed a violent crime. The probation condition prohibiting him from


       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 17 of 21
       possessing firearms is rationally calculated to advance the legitimate

       government interest in keeping firearms out of the hands of those who have

       shown a propensity for violence by committing a violent crime.

                                            Material Burden Analysis


[31]   As we noted in Redington, the core value implicated by firearms restrictions is

       the “right for law-abiding citizens to bear arms for self-defense.” Id. (citing Lacy

       v. State, 903 N.E.2d 486, 490 (Ind. Ct. App. 2009), trans. denied).8 However, our

       courts have recognized that the right to bear arms is not absolute. Lacy, 903

       N.E.2d at 490 (citing Kellogg v. City of Gary, 562 N.E.2d 685, 694 (Ind. 1990)).

       “[S]tate action does not impose a material burden on [a core value] if either the

       ‘magnitude of the impairment’ is slight or the [exercise of the right] threatens to

       inflict ‘particularized harm’ analogous to tortious injury on readily identifiable

       private interests.” Redington, 992 N.E.2d at 833 (quoting State v. Econ. Freedom

       Fund, 959 N.E.2d 794, 805 (Ind. 2011)). To determine the magnitude of the

       impairment, we look at whether the government action creates a “substantial

       obstacle” to the exercise of the right. Id. If not, then the law does not impose a

       material burden on the exercise of the right. Id. If so, we must then determine

       whether the defendant’s exercise of that right would threaten to cause

       “particularized harm.” Id.




       8
         As in federal Second Amendment jurisprudence, the “law-abiding citizen” language in Indiana case law
       seems to remove probationers such as Wilder from any Article 1, Section 32 protections. Nevertheless, we
       proceed to the material burden analysis.

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018                   Page 18 of 21
[32]   Here, as in Redington, the challenged restriction does not impose a substantial

       obstacle on Wilder’s right to bear arms for self-defense because the restriction is

       temporary, lasting only while Wilder is serving his one-year probation. See id.

       at 834 (finding no substantial obstacle on the right to bear arms when the statute

       provided a mechanism for regaining the right to carry a firearm within 180

       days).


[33]   Moreover, again as in Redington, even if we found the magnitude of the

       impairment on the right to bear arms was substantial, Wilder’s challenge would

       still fail on the second component of the material burden test because his

       possession of firearms during probation would threaten to inflict “particularized

       harm” on others. See id. at 834-35 & n.4 (emphasis in original) (noting “we

       need only find that a threat analogous to tortious injury on readily available

       private interests exists regarding the ‘particularized harm’ component”). The

       State proved beyond a reasonable doubt that Wilder committed the violent

       crime of battery against Turpen, repeatedly banging Turpen’s head on the

       ground and causing him injury. If Wilder possessed firearms, he would pose an

       even greater threat of violence. See id. (finding sufficient evidence of

       “particularized harm” where the state proved, by clear and convincing

       evidence, that the defendant was dangerous as defined by statute).


[34]   Because Indiana Code Section 35-38-2-2.3(a)(9), as applied to Wilder, has a

       rational basis and does not impose a material burden on Wilder’s right to bear

       arms, it does not violate Article 1, Section 32 of the Indiana Constitution.



       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 19 of 21
                                  Legitimate Needs of Law Enforcement

[35]   Finally, as noted above, the challenged probation condition is meant to keep

       dangerous weapons out of the hands of those who—like Wilder—have shown a

       propensity for violence, and that is a legitimate and important government

       purpose. See, e.g., Yancy, 621 F.3d at 683-84; see also, Redington, 992 N.E.2d at

       833. Moreover, as the State points out, law enforcement has a legitimate need

       to protect probation officers from being shot by a violent probationer.

       Probation officers often engage in home visits and searches of probationers’

       homes in order to monitor and ensure compliance with the terms of probation.

       I.C. § 35-38-2-2.3(a). Indeed, “probation searches ‘are necessary to the

       promotion of legitimate [state] interests.’” State v. Vanderkolk, 32 N.E.3d 775,

       779 (Ind. 2015) (quoting Samson v. California, 547 U.S. 843, 849 (2006)); see also,

       e.g., Bonner v. State, 776 N.E.2d 1244, 1249 (Ind. Ct. App. 2002) (discussing the

       ability to engage in warrantless probation searches as “an extremely valuable

       aid in rehabilitation” and the supervision and monitoring of probationers as a

       tool that facilitates the goals of genuine rehabilitation and protection of the

       public), trans. denied.


[36]   Furthermore, the probation officer/probationer relationship is one that can

       become fraught with tension, as the probation officer has the power to regulate

       the probationer’s behavior in ways that may be unwelcome and the power to

       seek a revocation of probation that could result in incarceration. Prohibiting a

       probationer from possessing firearms or residing in a home where firearms are

       present allows probation officers to carry out their critical supervisory

       Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 20 of 21
          responsibilities in greater safety, which is a legitimate and weighty state interest.

          In addition, it provides protection for law enforcement officers serving arrest

          warrants for probation violations, which is also an important aspect of the

          supervision and monitoring necessary to a successful probation system.

          Decreasing the risk that officers will encounter violent, armed probationers is a

          significant and legitimate law enforcement need.



                                                   Conclusion
[37]   The trial court did not commit fundamental error by failing to, sua sponte, exclude

       Det. Duley’s testimony under Rule of Evidence 704(b)—even if that testimony was

       an otherwise improper legal conclusion or ultimate opinion of Wilder’s guilt—

       because Wilder “opened the door” to that testimony. Sampson, 38 N.E.3d at 992.

       And the trial court did not abuse its discretion when it imposed the probation

       condition prohibiting Wilder from possessing firearms during his one-year

       probationary period, since that provision, as applied to Wilder, does not violate the

       Second Amendment or Article 1, Section 32 of the Indiana Constitution.


[38]   Affirmed.


       Kirsch, J., and Pyle, J., concur.




          Court of Appeals of Indiana | Opinion 49A02-1706-CR-1420 | January 9, 2018   Page 21 of 21
