MEMORANDUM DECISION
                                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                   Mar 22 2016, 9:56 am

regarded as precedent or cited before any                                                   CLERK
                                                                                        Indiana Supreme Court
court except for the purpose of establishing                                               Court of Appeals
                                                                                             and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT
Timothy J. Burns
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gregory Long,                                            March 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1509-CR-1346
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff                                       Judge
                                                         The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1410-CM-049718



Bradford, Judge.



                                    Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016           Page 1 of 7
[1]   On October 30, 2014, Appellant-Defendant Gregory Long was sitting in his

      pick-up truck, which was parked partially in the road such that it was blocking

      traffic. A passerby saw that Long and his passenger were unresponsive and

      appeared to be in trouble. The passerby called 911 and emergency responders

      arrived shortly thereafter. Police found an unloaded handgun in a holster lying

      on the driver’s side floorboard. Appellee-Plaintiff the State of Indiana charged

      Long with Class A misdemeanor carrying a handgun without a license. A jury

      found Long guilty as charged and he was subsequently sentenced to a one-year

      term suspended to probation. On appeal, Long argues that he was in

      compliance with a statutory exception permitting him to transport a handgun

      without a license. We find that there was sufficient evidence to support Long’s

      conviction. Affirmed.



                            Facts and Procedural History
[2]   On October 30, 2014, witness Mark Campbell was driving near 16th street in

      Indianapolis when he saw a pick-up truck parked halfway in the street

      obstructing traffic. As Campbell pulled around the truck, he looked inside and

      saw two men in the vehicle who appeared to be “passed out” and “in trouble.”

      Tr. pp. 37, 38. Campbell immediately parked, left his vehicle, and approached

      the truck. Campbell called 911 after he noticed that “the guy in the passenger

      seat was leaned all the way over onto the driver and he had some kind of foam

      type stuff coming out of his mouth.” Tr. p. 39. Indianapolis Metropolitan




      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 2 of 7
      Police Officer Mark Hamner and EMTs arrived shortly thereafter and assisted

      the driver, Long, to the back of his truck and seated him on the tailgate.


[3]   One of the medics signaled Officer Hamner to approach the driver side of the

      truck. The driver’s door was open and Officer Hamner observed a handgun in

      a black holster on the floorboard of the driver’s side of the truck. Officer

      Hamner testified that “the gun was positioned in a place that would be easily

      accessible to a driver.” Tr. p. 48. Officer Hamner took possession of the

      firearm and found that it was unloaded. Long admitted that the gun was his

      and that he did not have a valid permit to carry a handgun on October 30, 2014.

      Long testified that he believed he was in compliance with an Indiana handgun

      law which permits the transportation of an unloaded handgun without a license

      under certain conditions.1


[4]   Long was charged with Class A misdemeanor carrying a handgun without a

      license. The matter was tried by a jury on July 27, 2015, and Long was found

      guilty as charged. The trial court sentenced Long to one year suspended to

      probation.



                                       Discussion and Decision
[5]   On appeal, Long argues that the manner in which he was transporting the

      handgun met the statutory exception to the license requirement and that there




      1
          See Ind. Code § 35-47-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 3 of 7
      was insufficient evidence to prove otherwise. Long also argues that even if he

      did not meet the transportation exception requirements, he was reasonably

      mistaken about a fact that led him to believe he was in compliance with the

      law.


[6]           When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original).


[7]   The State did not file an appellee’s brief. When a party does not file an

      appellate brief, we do not undertake the burden of developing arguments for the

      appellee. Maser v. Hicks, 809 N.E.2d 429, 432 (Ind. Ct. App. 2004). When an

      appellee does not file a brief, we apply a less stringent standard of review and

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 4 of 7
      may reverse the trial court when the appellant establishes prima facie error. Id.

      “Prima facie” is defined as “‘at first sight, on first appearance, or on the face of

      it.’” Id. (quoting Parkhurst v. Van Winkle, 786 N.E.2d 1159, 1160 (Ind. Ct. App.

      2003)).


[8]   Indiana Code section 35-47-2-1 provides, in relevant part, as follows:

              (a) Except as provided in subsections (b) and (c) and section 2 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) Except as provided in subsection (c), a person may carry a
              handgun without being licensed under this chapter to carry a
              handgun if:
                      (1) the person carries the handgun on or about the person’s
                      body in or on property that is owned, leased, rented, or
                      otherwise legally controlled by the person;
                                                 ***
                      (3) the person carries the handgun in a vehicle…if the
                      handgun is:
                               (A) unloaded;
                               (B) not readily accessible; and
                               (C) secured in a case[.]


[9]   Long argues that his actions fell under the subsection (b)(3) exception. It is

      undisputed that the handgun was unloaded. However, there is evidence

      suggesting that the gun was readily accessible and that it was not secured in a

      case. Officer Hamner testified that the gun was on the floorboard of the driver’s

      side of the truck and “was positioned in a place that would be easily accessible

      Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 5 of 7
       to a driver.” Tr. p. 48. Long testified that he placed the gun under the back

       seat but speculates that “it is quite likely the trucks [sic] awkward angle on the

       street may very well have shaken the gun loose from its earlier position” and

       onto the front floorboard. Appellant’s Br. p. 10. However, the jury, as the

       finder of fact, was under no obligation to credit Long’s self-serving testimony

       and apparently did not. See Wood v. State, 999 N.E.2d 1054, 1064 (Ind. Ct.

       App. 2013) (noting that the trier of fact is not required to believe a witness’s

       testimony even when it is uncontradicted). We find that there was sufficient

       evidence for the jury to conclude that the gun was in a readily accessible

       location and, therefore, that Long’s actions did not fall into the exception for

       unlicensed transportation of a firearm.


[10]   Long also argues that he reasonably believed that the holster in which the gun

       was found was a “case” as is required by subsection (b)(3)(C) and that this

       honest mistake negates the culpability required for commission of the offense.

       However, we need not reach the merits of this novel argument. Even if we

       were to determine that a holster could be reasonably considered a “case” for the

       purposes of Indiana Code section 35-47-2-1, it would not warrant reversal of

       Long’s conviction. Because the three requirements under subsection (b)(3) are

       written in the conjunctive, failing to meet any one requirement precludes

       invoking the exception. As we have already determined, there was sufficient

       evidence to conclude that the gun was readily accessible by Long. Therefore,

       whether Long can show he reasonably believed he was complying with the

       “case” requirement is irrelevant.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 6 of 7
[11]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1509-CR-1346 | March 22, 2016   Page 7 of 7
