                                                                                  FILED
                                                                             May 04 2016, 8:38 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




APPELLANT PRO SE                                          ATTORNEYS FOR APPELLEE
David D. Barany                                           Gregory F. Zoeller
New Castle, Indiana                                       Attorney General of Indiana

                                                          Justin F. Roebel
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

David D. Barany,                                          May 4, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          17A04-1510-CR-1734
        v.                                                Appeal from the DeKalb Circuit
                                                          Court
State of Indiana,                                         The Honorable Kirk D. Carpenter,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          17C01-0505-MR-1



May, Judge.




Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016                      Page 1 of 5
[1]   David D. Barany appeals the trial court’s denial of his request to return the

      firearm used in the commission of the crime of which he was convicted. We

      affirm.


                                    Facts and Procedural History
[2]   In 2006, a trial court found Barany guilty of murder and sentenced him to fifty

      years. 1 During the trial, four weapons were introduced into evidence. On

      September 10, 2014, Barany asked that a “Bushmaster assault Rifle . . . Beretta

      handgun . . . [and] .22 Mag North American Arms Block powder revolver,”

      (App. at 18) (capitalization errors in original), be returned to his mother, Jan

      Barany.


[3]   At a hearing on the matter, the State made an oral motion to destroy the

      murder weapon, a “Colt Python .357 Magnum Revolver,” (id. at 16), which

      was not listed in Barany’s motion for return of property. The trial court granted

      Barany’s motion to return the three weapons he requested, and it granted the

      State’s oral motion to destroy the Colt Python.


[4]   Barany filed a notice of appeal, and then a motion for remand and motion for

      leave to file belated appellant’s brief with our court. On May 7, 2015, we

      granted his motion for remand “so [Barany] may pursue a Trial Rule 60(B)

      Motion in the trial court.” (Id. at 22.) On June 12, 2015, Barany filed a motion




      1
          We affirmed Barany’s conviction. Barany v. State, No. 17A03-0607-CR-286 (Ind. Ct. App. April 30, 2007).


      Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016                           Page 2 of 5
      for relief from judgment and affidavits in support thereof. In his motion, he

      asked the trial court “to grant this motion and vacate its December 14, 2014

      Judgment, and order the murder weapon [Colt Python] provided to Jan

      Barany, as it is her property[.]” (Id. at 27.) The State filed an objection to the

      60(B) motion and the trial court held a hearing on Barany’s 60(B) motion.


[5]   The trial court granted Barany’s 60(B) motion and determined “the Order of

      December 14, 2014 denying return of the murder weapon [Colt Python] to

      [Barany] is set aside.” (Id. at 15.) It then denied Barany’s request to release the

      Colt Python to Jan and granted the State’s request to have it destroyed, finding:

               It is not in the best interest of the citizens of the State of Indiana
               that the murder weapon [Colt Python] be allowed to continue to
               be in existence. It is against public policy to allow the convicted
               Defendant, David Barany, to profit in any way by allowing the
               sale of the very weapon he used to commit the murder.


      (Id. at 16.)


                                        Discussion and Decision
[6]   Ind. Code § 35-47-3-2(b) states:

               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 2. . . . However, nothing in this



      2
        Ind. Code § 35-33-5-5(c)(1) requires, in relevant part, “[p]roperty [seized as part of an arrest, search warrant,
      or warrantless search] which may be lawfully possessed shall be returned to its rightful owner, if known”
      following the final disposition in the trial court. It is undisputed the Colt Python was not returned pursuant
      to the requirements of Ind. Code § 35-33-5-5(c)(1) and thus the provisions of Ind. Code § 35-47-3-2(b) apply.

      Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016                                 Page 3 of 5
               chapter shall be construed as requiring the return of firearms to
               rightful owners who have been convicted of the misuse of
               firearms.


[7]   (footnote added). 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. Merlington v. State, 839 N.E.2d

      260, 262 (Ind. Ct. App. 2005). The court, once its need for the property has

      terminated, has both the jurisdiction and the duty to return seized property.

      Sinn v. State, 693 N.E.2d 78, 81 (Ind. Ct. App. 1998).


[8]   Barany argues the trial court should have released the Colt Python to Jan. 3 He

      cites Williams v. State, 952 N.E.2d 317 (Ind. Ct. App. 2011), in which we held

      the trial court should have released to Williams’ attorney a handgun seized as

      part of a criminal investigation against Williams. Id. at 321. Williams does not

      control, because Williams was not convicted of a crime involving misuse of the

      firearm. Instead, the charge of carrying a handgun without a license against

      Williams was dismissed after the trial court granted his motion to suppress.




      3
       Barany initially argued the trial court erred when it denied his T.R. 60(B) motion. However, as the State
      pointed out in its brief, the trial court granted his T.R. 60(B) motion but denied his request to release the Colt
      Python to Jan. Thus, the standard of review regarding the return of property is appropriate.

      Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016                                 Page 4 of 5
[9]    Because the Colt Python was a murder weapon, it was misused 4 for purposes of

       Ind. Code § 35-47-3-2(b). Thus, the trial court did not err when it denied

       Barany’s request to release the Colt Python to Jan.


                                                    Conclusion
[10]   The trial court did not err when it denied Barany’s request to release the Colt

       Python that Barany used to commit murder. We affirm.


[11]   Affirmed.


       Najam, J., and Riley, J., concur.




       4
         The Indiana Legislature has not defined “misuse of a firearm” as used in Ind. Code § 35-47-3-2(b). Based
       on the list of “lawful purposes” of a firearm including “hunting, self-defense, collecting, and competitive or
       recreational shooting” in Smith & Wesson Corp v. City of Gary, 875 N.E.2d 422, 427 (Ind. Ct. App. 2007), reh’g
       denied, trans. denied, we conclude the use a firearm to murder a person is “misuse” of the firearm.

       Court of Appeals of Indiana | Opinion 17A04-1510-CR-1734 | May 4, 2016                             Page 5 of 5
