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11/06/87 ROBERT MCANALLEY v. STATE INDIANA

Filed: November 6, 1987.

ROBERT MCANALLEY, APPELLANT (DEFENDANT BELOW),
v.
STATE OF INDIANA, APPELLEE (PLAINTIFF BELOW)



APPEAL FROM MARION MUNICIPAL COURT, ROOM NO. 15. The Honorable Richard E. Sallee, Judge. No. B8300557

Dickson, J., Shepard, C.j., and DeBRULER, Givan and Pivarnik, JJ., concur.

Author: Dickson

DICKSON, J.

Defendant-appellant Robert McAnalley received a sentence of thirty-two years, with one year suspended, following his conviction for Carrying a Handgun Without a License, a class D felony, and determination as a habitual offender. In subsequent separate proceedings which occurred following the initial submission of the record and briefs of the parties in this appeal, one of defendant's prior convictions was set aside. The trial court then vacated the habitual offender finding herein. Because of these intervening events, we need address only the following remaining issues:

1. insufficient evidence on the element of "carrying";

2. insufficient chain of custody;

3. denial of his motion for judgment on the evidence;

4. allowing rebuttal evidence;

5. refusal to give defendant's tendered final instructions; and,

6. failing to find mitigating circumstances and not giving alternate misdemeanor sentencing.

The charges against defendant arose from an incident on the night of October 27-28, 1984, at an Indianapolis tavern. Responding to a radio call concerning a possible disturbance at the tavern, police arrived, entered, and saw the defendant throw what appeared to be a weapon into the corner of the tavern. Officer Brown retrieved a handgun from the corner where the object had been thrown. He found nothing else on the floor. Upon learning that defendant did not have a permit to carry the weapon, police made the arrest.

Issue 1 - Definition of "Carrying"

Defendant first contends that his conviction is not supported by sufficient evidence, particularly as to the element of "carrying." Ind. Code § 35-47-2-1 provides that "a person shall not carry a handgun in any vehicle or on or about his person, . . . without a license . . .." Prior cases involving the carrying of a handgun in a vehicle, have required proof of an intention to convey or transport the weapon, State v. Cox (1973), 156 Ind. App. 548, 297 N.E.2d 920; Klopfenstein v. State (1982), Ind.App., 439 N.E.2d 1181. Defendant argues that because the handgun did not belong to him, and because there was no evidence that he brought it into the tavern or otherwise transported or conveyed the weapon, the element of "carrying" was not proved.

However, the issue in Klopfenstein was whether a driver violated the statute when the handgun was in the possession of a passenger. It required only knowledge of the presence of the handgun in the vehicle, not personal possession. Whether there was sufficient transportation of the weapon from one place to another, was not at issue. As authority for its reference to the intent to convey or transport, as an element of the crime, Klopfenstein cited State v. Cox, supra. ...


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