                                                                        FILED
                                                                   Dec 07 2016, 9:32 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Meggan Smith                                              Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Katherine Modesitt Cooper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Reginald Webster,                                         December 7, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A05-1603-CR-417
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Hooper,
Appellee-Plaintiff                                        Magistrate
                                                          Trial Court Cause No.
                                                          49F08-0303-CM-42430



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016                  Page 1 of 6
                                              Case Summary
[1]   Reginald Webster appeals his conviction for class A misdemeanor carrying a

      handgun without a license, following a bench trial. He raises two issues for our

      review, one of which we find dispositive: namely, he asserts that the trial court

      clearly erred in denying his Indiana Trial Rule 41(B) motion for involuntary

      dismissal. Finding that dismissal was warranted, we reverse his conviction.


                                  Facts and Procedural History
[2]   On March 17, 2003, the Indianapolis Metropolitan Police Department received

      an anonymous tip that three black males and one white female were selling

      drugs on the front porch of the residence located at 1554 East Naomi Street in

      Indianapolis. Officers Robert L. Wheeling, Jr., and Richard L. Hemphill, Jr.,

      were dispatched to the scene. Upon arrival, the officers observed one black

      male and one white male sitting on a couch located on the porch. When the

      officers exited their police vehicles, they each observed the black male, later

      identified as Webster, bend over toward the bottom of the couch and then

      quickly sit back up. The officers observed the white male, later identified as

      Jason Borenstein, reach over the porch railing and place something shiny in a

      shrub. The officers approached the males and asked them to stand. Concerned

      for officer safety, Officer Wheeling conducted a patdown search of Webster.

      Officer Hemphill then lifted up the couch and found a loaded .357 Magnum

      handgun directly under the front edge of the couch where Webster had been

      sitting and where he had reached. Webster did not present the officers with a

      permit or a license to carry a handgun.

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016   Page 2 of 6
[3]   The State charged Webster with class A misdemeanor carrying a handgun

      without a license. During the bench trial, Webster objected to the admission of

      and moved to suppress evidence of the handgun arguing that the anonymous tip

      was unreliable and that the officers lacked reasonable suspicion of criminal

      activity when they searched him. The trial court denied the motion and

      admitted the evidence. Thereafter, at the close of the State’s evidence, Webster

      moved for involuntary dismissal pursuant to Indiana Trial Rule 41(B).

      Specifically, Webster argued that the State had failed to prove that he possessed

      the handgun in a place other than his dwelling, property, or place of business,

      which is an element of the offense of carrying a handgun without a license. The

      trial court denied the motion and found Webster guilty as charged. This appeal

      ensued.


                                      Discussion and Decision
[4]   Webster asserts that the trial court clearly erred in denying his motion for

      involuntary dismissal pursuant to Indiana Trial Rule 41(B). Our review of a

      trial court's decision to grant or deny a motion to dismiss pursuant to Trial Rule

      41(B) is well-established:


              The grant or denial of a motion to dismiss made under Trial Rule
              41(B) is reviewed under the clearly erroneous standard. In
              reviewing a motion for involuntary dismissal, this [C]ourt will
              not reweigh the evidence or judge the credibility of the witnesses.
              We will reverse the trial court only if the evidence is not
              conflicting and points unerringly to a conclusion different from
              the one reached by the lower court.



      Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016   Page 3 of 6
      Todd v. State, 900 N.E.2d 776, 778 (Ind. Ct. App. 2009) (citations omitted). In a

      criminal action, a defendant’s Trial Rule 41(B) motion is essentially a test of the

      sufficiency of the State’s evidence. Id. Our review of the denial of a motion for

      involuntary dismissal is limited to the evidence presented by the State during its

      case-in-chief. Nichols v. State, 31 N.E.3d 1038, 1041 (Ind. Ct. App. 2015).


[5]   The statute in effect at the time Webster was alleged to have committed his

      offense provided in relevant part that “a person shall not carry a handgun in

      any vehicle or on or about the person’s body, except in the person’s dwelling,

      on the person’s property or fixed place of business, without a license issued

      under this chapter being in the person’s possession.” Ind. Code § 35-47-2-1(a).

      Thus, the essential elements comprising the offense are that: (1) Webster (2)

      possessed (3) a handgun (4) in a place that was not his dwelling, property, or

      fixed place of business. See Armstrong v. State, 742 N.E.2d 972, 978 (Ind. Ct.

      App. 2001) (noting essential elements of carrying handgun without a license).

      Once the State establishes that a defendant carried a handgun on or about his

      person, away from his dwelling, property, or fixed place of business, the burden

      shifts to the defendant to demonstrate that he possessed a valid license. Id. at

      977 (citing Harris v. State, 716 N.E.2d 406, 411 (Ind. 1999)). “Thus, proof of the

      presence of a license to carry a handgun is an exemption or exception to, and

      not an element of the crime of carrying a handgun without a license.” Id.


[6]   At the close of the State’s evidence, Webster moved for involuntary dismissal

      arguing that the State failed to prove that he possessed the handgun in a place

      other than his dwelling, property, or fixed place of business. Specifically, he

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016   Page 4 of 6
      argued that the State presented no evidence to show that 1554 East Naomi

      Street was not his dwelling, property, or fixed place of business. We agree.


[7]   In response to Webster’s motion for involuntary dismissal, the State argued that

      similar to the defendant’s possession of a valid license, the location where the

      defendant is carrying the handgun is an exemption or exception to, rather than

      an element of, the offense of carrying a handgun without a license. Thus, the

      State maintained, and the trial court mistakenly agreed, that it was Webster’s

      burden to prove that 1554 East Naomi Street was his dwelling, property, or

      fixed place of business as opposed to the State having the burden to prove that

      1554 East Naomi Street was not his dwelling, property, or fixed place of

      business. 1 This was clear error. As we already stated, the location where the

      defendant is carrying a handgun is an essential element of the charged offense.

      Armstrong, 742 N.E.2d at 978; see also Harris, 716 N.E.2d at 411 (Ind. 1999);

      Washington v. State, 517 N.E.2d 77, 78 (Ind. 1987); Woods v. State, 768 N.E.2d

      1024, 1027 (Ind. Ct. App. 2002); Seel v. State, 739 N.E.2d 170, 172 (Ind. Ct.

      App. 2000). The State presented no evidence that Webster possessed the




      1
        During trial, the State directed the trial court to Morgan v. State, 427 N.E.2d 1131, 1135 (Ind. Ct. App.
      1981), for the proposition that “it is the burden of the defendant to prove he comes within one of the
      exceptions” to the carrying a handgun without a license statute. Relying on Morgan, the State argued that the
      location where the defendant is carrying a handgun is an “exception” to the offense, and therefore that
      Webster had the burden to prove that he was “carrying it lawfully in his place of abode.” Tr. at 56. The trial
      court accepted this argument, concluding that “burden-shifting is allowed” and that “from a common sense
      standpoint” it seems logical that a defendant should have the burden to prove that he was in his dwelling,
      property, or fixed place of business rather than the State having the burden to prove that he was not in his
      dwelling, property, or fixed place of business. Id. at 58. As we stated above, the location where the
      defendant is carrying a handgun is an essential element of the offense and not an exception, and despite the
      State’s arguments to the contrary, we do not think that Morgan suggests otherwise.

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016                         Page 5 of 6
      handgun in a place other than his dwelling, property, or fixed place of

      business. 2 Accordingly, the trial court clearly erred in denying Webster’s

      motion for involuntary dismissal, and we reverse his conviction for class A

      misdemeanor carrying a handgun without a license.


[8]   Reversed.


      Kirsch, J., and May, J., concur.




      2
        The State briefly mentions that a 2016 arrest record, admitted for purposes of fingerprint identification, lists
      Webster’s address as 3331 West 33rd Street. The State implies that this evidence supports a reasonable
      inference that Webster did not reside at 1554 East Naomi Street at the time he committed the alleged offense
      in 2003. We agree with Webster that “[l]ittle, if anything, can be inferred” from his address thirteen years
      after the alleged offense, and that such evidence was insufficient to prove that Webster was in a place that
      was not his dwelling, property, or fixed place of business when he possessed a handgun in 2003. Reply Br. at
      5.

      Court of Appeals of Indiana | Opinion 49A05-1603-CR-417 | December 7, 2016                            Page 6 of 6
