                                                                                    FILED
                                                                               Nov 13 2018, 7:36 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Rory Gallagher                                            Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Tyler G. Banks
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marques D. Trice,                                         November 13, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-697
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Linda E. Brown,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                49G10-1710-CM-39478



      Barteau, Senior Judge.


                                      Statement of the Case
[1]   Marques Trice appeals the trial court’s order to destroy his handgun. We

      reverse and remand.




      Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018                          Page 1 of 12
                                                      Issue
[2]   Trice presents one issue for our review, which we restate as: whether the trial

      court erred by ordering the destruction of Trice’s handgun.


                               Facts and Procedural History
[3]   On March 14, 2017, Officer Matheis of the Indianapolis Metropolitan Police

      Department (IMPD) conducted a traffic stop of the vehicle driven by Trice due

      to the vehicle’s lack of illumination for the license plate. When Officer Matheis

      approached the vehicle, he asked Trice if there were any guns, knives, or other

      weapons in the vehicle. Trice responded that he had a handgun in the center

      console. The officer instructed Trice to leave his handgun where it was and

      returned to his car with Trice’s license and registration to check his driving

      record through the state database, which includes a firearm permit check. The

      database indicated that Trice’s firearm permit had expired. Officer Matheis

      confirmed this information with IMPD and then had Trice exit the car. The

      officer read Trice his Miranda rights and asked him whether he knew his permit

      was expired, whether he had his permit with him, and whether the gun was

      loaded. Trice responded affirmatively to the questions and showed his permit

      to Officer Matheis; Trice’s permit had expired in 2015. The officer took




      Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018      Page 2 of 12
      possession of the handgun, and Trice was charged with carrying a handgun
                                                                        1
      without being licensed as a Class A misdemeanor.


[4]   Following a bench trial, Trice was convicted as charged. The trial court

      sentenced him to 365 days in jail with credit for six days and 359 days

      suspended. As part of its sentencing order, the court ordered the destruction of

      the handgun. Trice now appeals that order.


                                          Discussion and Decision
[5]   Trice contends the trial court erred by ordering the destruction of his handgun.

      As an initial matter, the State argues that Trice has waived this issue by failing

      to object when the trial court ordered the destruction of his handgun at

      sentencing. We disagree.


[6]   Trice’s bench trial was held on March 6, 2018, immediately followed by

      sentencing. Just prior to the trial court issuing Trice’s sentence, the State said:


                 [N]oting his lack of criminal history prior to this case, the State
                 would ask that he be placed on reporting probation for a year,
                 pay the Two Hundred Dollar ($200.00) statutorily mandatory uh,
                 mandated Safe School fee, and that the handgun be destroyed.


      Tr. p. 37. Following defense counsel’s statement, the court sentenced Trice:


                 Court’s going to sentence the defendant to three hundred and
                 sixty-five (365) days in jail, with three hundred and fifty-nine



      1
          Ind. Code § 35-47-2-1 (2014).


      Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018          Page 3 of 12
              (359) days suspended; six (6) days credit, that’s three (3) actual
              days plus three (3) credit days, zero (0) days remaining to be
              served. Uh, the Court will impose court costs of One Hundred
              and Eighty-Five Dollars ($185.00), safe school fee of Two
              Hundred Dollars ($200.00), and a fine of Fifteen Dollars
              ($15.00). Uh, court will order the destruction of the firearm, and
              I will not place the defendant on probation or no community
              service work based on his lack of criminal history. Uh, sir you
              have the right to appeal this decision.


      Id. at 41. Trice did not object.


[7]   In Bell v. State, 59 N.E.3d 959 (Ind. 2016), our Supreme Court considered a

      similar issue when Bell was sentenced and ordered to pay restitution. She did

      not object at the time the order was entered. On appeal, the Court stated:


              [W]e note as a threshold matter that Bell has not waived her
              ability to challenge the restitution order due to her failure to
              object to the order at the time it was entered. An order of
              restitution is as much a part of a criminal sentence as a fine or
              other penalty. This Court and the Court of Appeals review many
              claims of sentencing error (improper consideration of an
              aggravating circumstance, failure to consider a proper mitigating
              circumstance, inaccurate weighing of aggravating and mitigating
              circumstances, etc.) without insisting that the claim first be
              presented to the trial judge. Although there have been cases in
              which appeals on restitution were waived due to the failure to
              make an objection at trial, the vast weight of the recent case law
              in this state indicates that appellate courts will review a trial
              court’s restitution order even when the defendant did not object
              based on the rationale that a restitution order is part of the
              sentence, and it is the duty of the appellate courts to bring illegal
              sentences into compliance.



      Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018        Page 4 of 12
      Id. at 962 (internal quotations and citations omitted).


[8]   We find the order to destroy Trice’s handgun to be similar to the order of Bell’s

      restitution. It is a penalty as part of a criminal sentence. And because the trial

      court ordered the destruction of the gun as part of Trice’s sentence, we will treat

      this issue like any other claim that a trial court has violated its statutory

      authority in imposing a sentence and allow him to raise it for the first time on

      appeal. See Rodgers v. State, 40 N.E.3d 969, 970 n.5 (Ind. Ct. App. 2015)

      (although Rodgers did not object, “‘appellate courts will review a trial court’s

      restitution [order] even where the defendant did not object based on the

      rationale that a restitution order is part of the sentence, and it is the duty of the

      appellate court to bring illegal sentences into compliance.’” (quoting Rich v.

      State, 890 N.E.2d 44, 48 (Ind. Ct. App. 2008), trans. denied); see also Edsall v.

      State, 983 N.E.2d 200, 208 (Ind. Ct. App. 2013) (although State mentioned

      restitution several times, specific amount was discussed at length, and

      defendant failed to object to its imposition, claim that trial court violated its

      statutory authority in imposing sentence could be raised for first time on appeal

      because restitution order was part of defendant’s sentence). Moreover,

      practicality dictates allowing Trice to raise the issue on appeal because a

      sentencing order is usually a final judgment to which the defendant does not

      have a prior opportunity to object. Accordingly, we address Trice’s argument

      on the merits.


[9]   Although Trice did not file a motion for the return of his handgun, the court’s

      order of destruction, in substance, operates to deny the return of Trice’s

      Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018        Page 5 of 12
       property. Thus, we apply the standard of review used when a trial court has

       denied a party’s motion for the return of property. When we review the denial

       of a motion for return of property, we will affirm unless the decision is clearly

       erroneous and cannot be sustained on any legal theory supported by the

       evidence. Roy v. State, 81 N.E.3d 641, 643 (Ind. Ct. App. 2017). Once its need

       for the property has terminated, the court has both the jurisdiction and the duty

       to return seized property. Barany v. State, 54 N.E.3d 386, 387 (Ind. Ct. App.

       2016), trans. denied.


[10]   Both parties agree this controversy revolves around Indiana Code section 35-47-

       3-2 (2014), which sets forth the procedures for the return of firearms to rightful

       owners and the disposal of confiscated firearms. At the time of Trice’s offense,

       this statute provided, in relevant part:


               (b) 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 IC 35-33-5. If the rightful ownership
               is not known the law enforcement agency holding the firearm
               shall make a reasonable attempt to ascertain the rightful
               ownership and cause the return of the firearm. 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. In
               such cases, the court may provide for the return of the firearm in
               question or order that the firearm be at once delivered:


                        (1) except as provided in subdivision (2), to the sheriff's
                        department of the county in which the offense occurred; or


                        (2) to the city or town police force that confiscated the
                        firearm.
       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018            Page 6 of 12
       (Emphasis added).


[11]   The thrust of Trice’s argument is that carrying a handgun without being

       licensed does not amount to “misuse” of a firearm. However, the phrase

       “misuse of a firearm” has not been legislatively defined in Indiana for purposes

       of Indiana Code section 35-47-3-2(b). The question before us then is what

       constitutes “misuse” of a firearm.


[12]   The interpretation of a statute is a question of law that we review de novo.

       Montgomery v. State, 878 N.E.2d 262, 266 (Ind. Ct. App. 2007). The primary

       purpose of statutory interpretation is to determine and give effect to the intent

       of the legislature. Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012). The best

       evidence of legislative intent is the language of the statute itself. Chambliss v.

       State, 746 N.E.2d 73, 77 (Ind. 2001). If the language of the statute is clear and

       unambiguous, we must apply its plain and ordinary meaning without resort to

       any other rules of statutory construction. Adams, 960 N.E.2d at 798.


[13]   When a statute is susceptible to more than one reasonable interpretation, it is

       ambiguous, and we resort to the rules of statutory construction in order to give

       effect to the legislature’s intent. Id. Undefined words in a statute are to be

       given their plain, ordinary and usual meaning. State v. Hancock, 65 N.E.3d 585,

       587 (Ind. 2016) (citing Ind. Code § 1-1-4-1(1) (1991)). In determining the plain

       and ordinary meaning of a statutory term, courts may consult English language

       dictionaries. Hancock, 65 N.E.3d at 587. Further, criminal statutes must be

       construed strictly against the State with ambiguities resolved in favor of the


       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018        Page 7 of 12
       defendant. Chastain v. State, 58 N.E.3d 235, 238 (Ind. Ct. App. 2016), trans.

       denied. They should not be enlarged by construction beyond their fair meaning;

       yet, they should not be so narrowly construed as to exclude cases they fairly

       encompass. Id.


[14]   With respect to precedent, we observe that a panel of this Court, noting that the

       Legislature has not defined “misuse of a firearm” as used in the statute at issue

       here, concluded that the use of a firearm to murder a person is misuse of the

       firearm. See Barany, 54 N.E.3d at 387 n.4. Additionally, Barany provides a list

       of what is not misuse of a firearm. See id. (noting that “lawful purposes” of a

       firearm include “hunting, self-defense, collecting, and competitive or

       recreational shooting” (quoting Smith & Wesson Corp. v. City of Gary, 875 N.E.2d

       422, 427 (Ind. Ct. App. 2007), trans. denied)). Nevertheless, neither murder nor

       any of the lawful purposes identified in Barany are involved in this case.


[15]   Accordingly, we begin with the dictionary definition of “misuse.” Merriam-

       Webster defines the noun “misuse” as “incorrect or improper use.”

       https://www.merriam-webster.com/dictionary/misuse (last visited November

       2, 2018). Another and similar definition is “The wrong or improper use of

       something.” https://en.oxforddictionaries.com/definition/misuse (last visited

       November 2, 2018). Additionally, the term is defined as “an occasion when

       something is used in an unsuitable way or in a way that was not intended” and

       “the act of using something wrongly or in a dishonest way.”

       https://dictionary.cambridge.org/us/dictionary/english/misuse (last visited

       November 2, 2018).

       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018     Page 8 of 12
[16]   We observe that Trice was convicted of carrying a handgun—that is, Trice

       possessed a handgun—without a license. See Armstrong v. State, 742 N.E.2d

       972, 978 (Ind. Ct. App. 2001) (“The offense of carrying a handgun without a

       license requires mere possession of the handgun.”). The evidence shows that

       Trice’s handgun was in the console of his vehicle, and the officer became aware

       of its existence when Trice answered affirmatively and honestly the officer’s

       inquiry as to whether Trice had any weapons in the vehicle. However,

       although Trice possessed the handgun, he did not use the handgun. See Nicoson

       v. State, 938 N.E.2d 660, 665 (Ind. 2010) (declaring that, where statute requires

       “use” of firearm in commission of underlying offense, mere possession of

       firearm is not enough and asserting reasonable inference that “the General

       Assembly was recognizing the additional escalation of danger associated with

       the actual use of a firearm versus the mere possession of one during the

       commission of an offense” and citing Mickens v. State, 742 N.E.2d 927 (Ind.

       2001) (recognizing difference between possessing firearm and using firearm));

       see also Daniels v. State, 957 N.E.2d 1025, 1030 (Ind. Ct. App. 2011)

       (acknowledging that no Indiana cases have addressed meaning of “use” of

       weapon but noting acceptance that definition includes “brandishing, displaying,

       bartering, striking with,” and “firing or attempting to fire, a firearm” in statutes

       prohibiting “use” of firearm in commission of offense).


[17]   Therefore, the definitions of the term “misuse” can best be applied here to mean

       that a conviction for the misuse of a firearm must involve some use of the firearm

       that is incorrect, improper, or unsuitable. Trice did not use the handgun;


       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018       Page 9 of 12
       rather, he was merely in possession of it. Thus, it defies logic and relevant

       precedent to say that he misused the handgun.


                                                 Conclusion
[18]   For the foregoing reasons, we conclude Trice’s conviction of carrying a

       handgun without a license does not amount to a conviction of misuse of a

       firearm. Consequently, the trial court erred by ordering the destruction of

       Trice’s handgun.


[19]   Reversed and remanded.


       Robb, J., concurs.


       Crone, J., dissents with opinion.




       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018    Page 10 of 12
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Marques D. Trice,
       Appellant-Defendant,

               v.
                                                                 Court of Appeals Case No.
                                                                 18A-CR-697
       State of Indiana,
       Appellee-Plaintiff.



       Crone, Judge, dissents with opinion.


[20]   Based on the dictionary definitions of “misuse” and the wording and purpose of

       Indiana Code Section 35-47-3-2, I respectfully disagree with the majority’s

       determination that it “defies logic and relevant precedent” to say that Trice

       misused his handgun when he carried it in his car without a license. Slip op. at

       10. Just as driving a motor vehicle without a license is misuse of the vehicle,

       i.e., the unlawful, incorrect, dishonest, and unintended use of the object, so in

       my opinion is carrying a handgun without a license an unlawful, incorrect, and

       prohibited use of the gun. Moreover, unlike the statutes at issue in Nicoson and

       Daniels, Section 35-47-3-2 does not require the “use” of a handgun in the

       commission of an offense; it simply requires a “convict[ion] for the misuse of




       Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018                  Page 11 of 12
firearms.”2 Carrying a handgun without a license is misusing a firearm, and

thus a conviction for that offense is a conviction for the misuse of firearms.

One of the purposes of Section 35-47-3-2 is to punish those convicted of

misusing firearms by authorizing the destruction of their firearms, and I would

affirm the trial court’s destruction order in this case.




2
    And unlike the Mickens court, we are not confronted with a double jeopardy issue here.


Court of Appeals of Indiana | Opinion 18A-CR-697 | November 13, 2018                         Page 12 of 12
