                                                                                             FILED
                                                                                        Jul 21 2017, 6:35 am

                                                                                             CLERK
                                                                                        Indiana Supreme Court
                                                                                           Court of Appeals
                                                                                             and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Yvette M. LaPlante                                         Curtis T. Hill, Jr.
      Keating & LaPlante, LLP                                    Attorney General of Indiana
      Evansville, Indiana
                                                                 Laura R. Anderson
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jonathan Kent Roy,                                         July 21, 2017

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 82A01-1701-CR-204
              v.                                                 Appeal from the Vanderburgh Circuit
                                                                 Court.
                                                                 The Honorable Kelli E. Fink,
      State of Indiana,                                          Magistrate.
      Appellee-Plaintiff.                                        Trial Court Cause No.
                                                                 82C01-1606-F5-3289




      Darden, Senior Judge


                                       Statement of the Case
[1]   Jonathan Kent Roy appeals the trial court’s denial of his Petition for Return of

      Property, in which he asked the court to order the State to return a handgun to

      his mother. We reverse and remand.



      Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017                       Page 1 of 8
                                                       Issue
[2]   Roy raises one issue, which we restate as: whether the trial court erred in

      denying Roy’s petition.


                                Facts and Procedural History
[3]   On June 4, 2016, police officers were dispatched to investigate a reported break-

      in at a commercial building. One of the officers looked in a window and saw

      Roy sitting on an air mattress, tending to a cut on his leg. As the officer

      watched, Roy picked up and then hid a handgun. When another officer

      knocked on the door, Roy grabbed the gun and ran to another part of the

      building before returning to his original location. The officers entered the

      building and took Roy into custody. They found the handgun, a .357 magnum

      silver Colt Trooper Mark III revolver bearing serial number L6744, in a

      backpack. Later, an officer searched for information about the handgun in an

      online database, which indicated that a handgun bearing serial number L6744

      had been reported stolen in Texas in 1991.


[4]   The State charged Roy with burglary, a Level 5 felony; theft of a firearm, a

      Level 6 felony; and carrying a handgun without a license, a Class A

      misdemeanor. Roy and the State executed a plea agreement, pursuant to which

      Roy pleaded guilty to criminal trespass, a Class A misdemeanor, and carrying a

      handgun without a license, a Class A misdemeanor. The court accepted the

      plea agreement and imposed a sentence of time served.




      Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017       Page 2 of 8
[5]   On September 15, 2016, Roy filed a Petition for Return of Property, requesting

      the court to order the return of the handgun to him or his designee. The court

      held an evidentiary hearing on December 15, 2016. During the hearing, Roy

      requested the court to order the return of the handgun to his mother, asserting

      she was the rightful owner and had loaned the handgun to him. He further

      claimed the handgun had originally belonged to his father since the 1980s, and

      his father had died approximately seven years earlier. The court concluded that
                                                                                        1
      Roy’s mother was not the rightful owner and denied Roy’s petition. This

      appeal followed.


                                        Discussion and Decision
[6]   Roy argues the court’s decision is unsupported by the evidence and should be

      reversed. A person seeking the return of property seized by the State during an

      investigation must prove by a preponderance of the evidence that he or she is

      the rightful owner of the property. Tracy v. State, 655 N.E.2d 1232, 1236 (Ind.

      Ct. App. 1995), trans. denied. Upon review of 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. Barany v. State, 54

      N.E.3d 386, 387 (Ind. Ct. App. 2016), trans. denied, cert. denied. Statutes that

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




      1
          We thank the trial court for its detailed findings, which aided our review.


      Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017               Page 3 of 8
      constitutional right of the people. Williams v. State, 952 N.E.2d 317, 319 (Ind.

      Ct. App. 2011) (quotation omitted).


[7]   The parties agree that this case is governed by Indiana Code section 35-47-3-2

      (2014). That statute provides, 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.

      Id. In addition, Indiana Code section 35-33-5-5 (2007) states as to property that

      has been seized by the police: “Property which may be lawfully possessed shall

      be returned to its rightful owner, if known.”


[8]   Roy argues the trial court erred in concluding his mother was not the lawful

      and rightful owner of the firearm. We agree. The State’s evidence consisted of,

      and depended entirely upon, the equivocal testimony of Deputy Joshua

      Patterson, who presented evidence in support of an unsupported theory that the

      handgun the officers found on Roy had been reported stolen from Fort Bliss in

      El Paso, Texas in 1991. Deputy Patterson testified as follows:

      Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017        Page 4 of 8
              Q        Can you discuss the process of your investigation and
                       findings?
              A        I was contacted by the Prosecutor’s Office in reference to
                       this case, at that time I attempted to, when the incident
                       first occurred it appeared that the officer that was involved
                       with the case, the EPD officer, attempted to contact the
                       agency in which the firearm was stolen from which
                       happened to be a military base down in Texas, I cannot
                       think of the name of the military base off the top of my
                       head. They advised they would get back to that officer,
                       apparently, they never have. At that point I attempted to
                       make contact with them on several occasions, have talked
                       to a few people who were going to have an investigator
                       call me back, but to no avail they, I've never received a call
                       back from them.

      Tr. Vol. I, pp. 16-17.

[9]   Roy presented Defendant’s Exhibit 2, a printout from the Colt website showing

      the handgun that the police had found on Roy and another handgun had the

      same serial number. Deputy Patterson testified about that document and his

      investigation as follows:

              Q        I’m going to show you what’s been marked as Defendant’s
                       exhibit 2 and ask you if you’ve seen something similar to
                       that or if you actually have seen that very document on the
                       Colt website?
              A        Yes, I have seen this.
              Q        Okay, and does that indicate that there are two different
                       specific firearms that contain the same serial number?
              A        It does show that, it appears there are two firearms that are
                       associated with that serial number.
              Q        Okay, and you have made efforts to determine whether or
                       not this Colt Trooper .357 with that serial number was
                       stolen, is that right?
      Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017           Page 5 of 8
               A        I have attempted to make that.
               Q        Have you been successful in making a determination
                        whether or not that firearm was in fact stolen?
               A        I have been unable to contact the agency that put out that
                        specific firearm, that hit request, as being stolen.
               Q        Okay, and NCIC reports are somewhat related to the
                        accuracy with the data that is entered, are they not?
               A        That is correct.
               Q.       So if the data is entered erroneously for example, then it’s
                        only as good as the agency that put it in?
               A        That is correct.
               Q        So it’s theoretically possible that the agency that put in a
                        stolen Colt .357 could have mistakenly entered the serial
                        number?
               A        That is correct.
               Q        Okay, and there’s no way for us to determine that without
                        getting some confirmation from that agency?
               A        That is correct.

       Id. at 14-15.


[10]   Deputy Patterson acknowledged that he did not have any hard evidence to

       support the allegation that the particular handgun in question was stolen.

       Although making diligent efforts to follow up in his investigation regarding the

       details of the reported 1991 theft of a handgun, he was unsuccessful. The

       evidence shows that after he made several contacts and spoke with personnel

       therein, no one at the Texas agency he contacted ever returned his calls with

       follow-up details regarding the reported stolen handgun. In addition, the State

       neither presented a photocopy of the 1991 reported stolen handgun nor

       introduced into evidence a copy of the stolen handgun report. Furthermore, the




       Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017         Page 6 of 8
       State did not present any evidence depicting any facts and/or circumstances

       surrounding the theft of a handgun as related to in the report.


[11]   Deputy Patterson, a long-time investigator, further testified that the reliability of

       a report depends heavily upon the accuracy of the details and numbers as noted

       in the report. He testified that based upon his experience, he has encountered

       situations wherein details or numbers have been transposed or otherwise

       inaccurately entered into a report, including reports entered on the national

       database he consulted in this case. Id. at 22-23.


[12]   By contrast, Roy’s mother identified and testified unequivocally that Roy’s

       father had owned the handgun in question before their marriage in 1985.

       Further, police records show that law enforcement, pursuant to a search

       warrant, temporarily confiscated the handgun from Roy’s father in 2000 and

       later returned it to him in 2001. There is no indication that law enforcement

       checked at that time to see if the handgun was reported stolen, although Deputy

       Patterson testified it was his practice to check the status of all firearms he

       encounters in criminal investigations.


[13]   Roy’s brother Clint identified and testified unequivocally that their mother had

       loaned the Colt handgun to Roy for his protection. Clint also authenticated a

       photograph of the handgun he had taken in the year 2015.


[14]   We are mindful of our standard of review. Even so, based on the evidence

       presented, the uncorroborated and possible erroneous report cannot sustain the

       court’s judgment. The trial court’s decision is clearly erroneous because Roy

       Court of Appeals of Indiana | Opinion 82A01-1701-CR-204 | July 21, 2017      Page 7 of 8
       established by a preponderance of the evidence that his mother was the lawful

       and rightful owner of the handgun. See Williams, 952 N.E.2d at 320 (reversing

       denial of motion for petition to return handgun; undisputed evidence

       established defendant’s attorney had valid ownership interest in handgun).


                                                  Conclusion
[15]   For the reasons stated above, we reverse the judgment of the trial court and

       remand for further proceedings consistent with this decision.


[16]   Reversed and remanded.


       Bailey, J., and Robb, J., concur.




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